Legal  Recreations. 


Humorous  Phases 

OF  THE  Law. 


IR.VING  BbS^WNE 


LEGAL    RECREATIONS. 


VOL.     I 


Suir\ofou^  f^l^k^e^  of  tl\e  I<kw. 


Humorous   Phases 


THE    LAW. 


IRVING   BROWNE. 


SAN  FRANCISCO  : 

Sumner  Whitney  &  Co. 


PREFACE 


The  papers  embraced  in  the  following  pages  were 
originally  published  in  the  Albany  Law  Jour- 
nal. The  writer  has  been  led  to  collect  and  pub- 
lish them  in  the  present  form,  not  "at  the  solicita- 
tion of  many  friends  and  against  his  better  judg- 
ment"—  which  is  the  usual  form  of  expression  in 
such  cases  —  but  in  the  hope  that  they  may  enliven 
a  leisure  hour  of  his  brethren  engi'ossed  in  a  dry 
profession,  and  possibly  amuse  a  few  outside  of  the 
ranks  of  the  law.  For  the  benefit  of  the  latter,  he 
has  added  a  few  explanatory  notes. 

The  cases  cited  in  the  following  pages  are  all 
real,  and  the  writer  has  not  intentionally  exagger- 
ated or  misrepresented  any  of  them.  In  a  great 
majority  of  instances  he  has  consulted  the  original 
reports,  and  has  not  depended  on  second-hand  cita- 
tions. If  any  thing  humorous  shall  be  discovered 
in  them,  therefore,  the  reader  may  rely  that  the 
author  has  not  made  fun  of  the  law,  but  has  only 
allowed  the  law  to  make  fun  of  itself. 

The  writer  submits  these  papers  to  the  public, 
hoping  that  his  readers  may  find  as  much  amuse- 
ment in  the  perusal  as  he  has  found  in  the  re- 
searches necessary  to  the  preparation. 

Troy,N.  Y.,  Septemler,  1875.  I.  B. 


THE  CONDUCT  OF  COURTS. 


It  is  popularly  supposed  that  the  study  and 
pursuit  of  the  law  are  unattractive.  It  is  true  that 
the  court-room  is  not  a  prepossessing  apartment. 
To  those  unfortunates  of  our  race  who  seem  to  have 
an  innate  bias  toward  depravity,  its  interior  must 
be  quite  forbidding.  It  is  somewhat  awful,  even 
to  those  unaccustomed  litigants  who  approach  it  in 
a  harmless  way,  to  contest  civil  rights.  It  is  pecu- 
liarly a  bugbear  to  nervous  women.  To  some  sickly 
ladies  the  height  of  human  infelicity  seems  to  be  an 
imaginary  liability  to  be  dragged  to  the  witness 
stand.  They  know  they  never  could  live  through 
it.  We  often  wonder  that  their  husbands  do  not 
contrive  to  have  them  subpoenaed,  for  the  sake  of 
the  experiment. 

But  on  more  familiar  acquaintance,  these  horrors 
wear  away.  The  associations  of  the  court-room  are 
apt  to  degenerate  into  dullness,  and  its  visitants  are 
more  prone  to  gape  than  to  tremble;  and  yet,  to 
one  who  is  an  habitual  frequenter  of  its  precincts, 
its  lessons  are  not  unmixed  with  the  humorous. 
On  entering  its  venerable  portals,  how  quiet  and 
drowsy  is  the  aspect  of  every  thing  !  The  hall  is 
shrouded  in  a  dim,  irreligious  light ;  the  sun,  that 
usually  unblushing  orb,  seems  diffident  about  look- 


2  THE    COXDUCT    OF    COURTS. 

ing  in  upon  this  mysterious  realm  of  green  baizo 
and  red  tape.  Long  rows  of  corpulent  books, 
almost  buried  in  dust,  suggest  forgotten  researches 
of  scholars  and  jurists.  The  flies  on  the  windows 
are  of  the  fattest  and  laziest  kind — regular  chan- 
cery suitors  ;  while  the  spiders  that  conceal  their 
webs  in  the  recesses  of  the  dome,  are  marvellously 
agile  and  sharp  —  complete  solicitors  in  their  way. 
The  sheriif's  mastitf,  sleeping  at  the  door  of  the 
prisoners'  box,  has  an  extraordinarily  severe  and  un- 
fathomable countenance,  the  opposite  of  that  of  his 
master,  who  is,  in  most  instances,  a  good-natured 
man.  Half  a  dozen  superannuated  persons,  bear- 
ing long  and  unwieldy  jDoles,  flit  in  a  noiseless 
manner  about  the  room,  rendering  themselves 
generally  useless  and  in  the  way.  There  is  a  bald 
fat  man,  with  spectacles,  upon  the  bench,  whose 
chief  occupation  seems  to  be  to  discomfit  one  or  the 
other  of  two  thin  bald  men,  with  spectacles,  at  the 
bar.  Directly  under  the  judge's  bench  sits  the 
clerk,  whose  principal  duties,  or  rather  pleasures, 
are  to  make  fees,  and  to  construct  good  citizens  out 
of  all  sorts  of  foreign  materials  in  the  rough.  Close 
at  his  elbow,  at  this  moment,  sits  a  prisoner,  who, 
with  a  broad  grin  on  his  face,  is  laboriously  sign- 
ing his  name  to  a  certain  paper  writing  ;  well  may 
he  smile,  for  it  is  "  his  own  recognizance "  for  bail 
that  he  is  subscribing,  and  he  is  doubtless  thinking 
what  a  "  muff  "  the  judge  must  be  to  let  him  oif  on 
such  easy  security.  The  aged  crier,  who  looks  as  if 
he  might  have  come  over  in  the  "  Mayflower,"  rises 
and  drones  forth  his  mechanical  "  oyez,"  in  the 
same  whine  that  has  characterized  it  ever  since  the 


THE    COXDUCT   OF    COURTS.  6 

blessings  of  legal  forms  dawned  n2)on  our  perishing 
race.  The  lawyers,  who  really  act  among  them- 
selves as  if  they  are  a  good  set  of  fellows,  and  seem 
unreasonably  happy  and  jovial  for  persons  having 
so  much  on  their  consciences,  are  talking  and  laugh- 
ing, in  no  wise  dismayed  by  the  caution  of  the 
crier's  formula.  They  evidently  feel  under  no  more 
restraint  than  the  disrespectful  son,  whose  father 
excused  his  sauciness,  on  the  ground  that  they  were 
so  well  acquainted  that  they  said  almost  any  thing 
they  pleased  to  each  other.  "  Silence  in  court  ! " 
says  his  honor,  rapping  the  bench  with  the  knife 
with  which  he  has  been  peeling  an  apple  while  he 
read  the  morning  newspaper  ;  at  the  same  time 
looking  severely  in  every  direction,  except  that 
from  which  the  disturbance  evidently  comes.  At 
this  signal,  the  superannuated  persons,  bearing 
poles,  agitate  themselves  out  of  their  somnolency, 
making  great  pretense  of  activity  in  suppressing  an 
imaginary  tumult,  and  shortly  go  to  roost  on 
their  poles  again.  All  this  time  the  hum  of  the 
great  noisy  world  outside  acts  like  a  soporific  on 
the  senses. 

"Call  the  grand  jury,"  says  the  judge.  After 
they  are  called,  and  sw^orn  to  keep  all  sorts  of 
secrets,  "  including  their  own  and  their  fellows," 
(and  here  seems  to  be  a  reason  why  women,  in  any 
millenium  of  female  sovereignty,  can  never  act  as 
grand  jurors),  his  honor  appoints  the  most  corpu- 
lent and  inactive  one  as  foreman.  Then,  after  a 
caution  from  the  old  crier  to  the  bystanders  to 
"keep  silence  on  pain  of  fine  and  imprisonment" 
(which  seems   quite  unnecessary,   because  at  this 


4  THE   CONDUCT   OF   COURTS. 

juncture  the  spectators  are  always  in  breathless 
suspense  to  learn  if  it  is  possible  for  the  judge  to 
say  any  thing  new),  his  honor  rises,  and  the  jury 
also  rise,  with  unmixed  awe  and  respect  imprinted 
on  their  countenances,  and  his  honor  proceeds'  to 
charge  them,  "with  horse,  foot  and  dragoons." 
It  is  customary  to  observe  in  opening,  that  altliough 
they  may  properly  be  supposed  to  be  somewhat 
familiar  with  their  duties  (which  is  not  improbable, 
considering  that  the  public  are  thus  made  ac- 
quainted with  them  three  or  four  times  a  year),  yet 
it  is  required  of  him  to  make  a  few  general  remarks. 
He  then  proceeds,  at  an  hour's  length,  to  inform 
them  that  they  are  the  conservators  of  the  public 
peace  and  the  safeguard  of  society;  that  they  are 
selected  from  the  most  intelligent  and  respectable 
portion  of  the  community  to  protect  their  persons 
and  property  from  the  hand  of  the  violent,  and  to 
point  out  the  offender  to  public  justice.  He  then 
overwhelms  them  with  a  sense  of  their  tremendous 
responsibility,  and  the  solemnity  of  their  position. 
He  then  impresses  on  them  the  novel  theory  that 
no  man  is  so  high  as  to  be  above,  nor  so  low  as  to  be 
beneath,  the  reach  of  the  law.  He  then  opens  up 
to  them  the  terrible  consequences  which  would 
ensue  if  they  should  fail  to  preserve  strict  secrecy 
as  to  their  deliberations  and  proceedings,  and  gives 
them  a  timely  caution  to  be  impartial  and  unpre- 
judiced. He  then  usually  reminds  them  that  their 
whole  duty  is  pointed  out  in  their  oath,  which  he 
proceeds  to  analyze,  making  each  component  part 
the  text  for  a  short  discourse  of  say  fifteen  min- 
utes; but  this,  as  it  is  merely  a  repetition  of  what 


THE   CONDUCT   OF    COURTS.  5 

he  has  ah-eady  said,  it  is  unnecessary  for  us  to  go 
through.  He  then  reminds  them  of  the  necessity 
of  being  utterly  devoid  of  partiality  and  prejudice. 
Next  he  calls  their  attention  to  several  offenses 
which  our  legislature  have  deemed  so  much  more 
heinous  than  all  others,  as  to  be  worthy  of  specific 
reprobation,  such  as  vending  intoxicating  beverages 
to  drunken  men,  without  having  paid  the  State  for 
the  privilege;  lending  money  at  the  rate  of  interest 
which  the  parties  think  it  worth,  when  it  happens 
to  exceed  what  the  State  thinks  it  worth;  taking 
money  from  a  candidate  for  voting  for  him  when 
the  purchased  party  would  have  voted  for  him  in 
any  event,  and  so  forth.  These  injunctions  are 
undoubtedly  most  excellent  in  a  moral  view,  but 
are  never  known  to  produce  the  slightest  practical 
effect.  He  then  again  exhorts  them  to  divest  their 
minds  of  every  thing  like  partiality  or  prejudice. 
And  finally  he  winds  up,  in  a  comprehensive,  well- 
rounded  and  elaborate  sentence  (usually  written 
beforehand),  designed  to  comprise  all  that  he  has 
said  before  (with  an  additional  remark  about  the 
impropriety  of  partiality  and  prejudice),  and  thus 
impress  it  on  their  minds  ;  and  with  a  bland  and 
soothing  reminder  of  the  reliance  that  the  com- 
munity place  upon  their  unimpeachable  and  unques- 
tioned and  unvarying  integrity,  intelligence  and 
impartiality,  he  dismisses  them  to  their  secret 
chamber,  under  the  guidance  of  one  of  the  paralyt- 
ics, who  descends  from  his  roost  for  the  purpose. 
The  reporters  for  the  press  are  very  busy  all  this 
time,  and  next  day  the  newspapers,  with  remark- 
able unanimity,  compliment  his  honor  on  his  able, 


6  THE   CONDUCT  OF   COURTS. 

learned  and  eloquent  "  charge  to  the  grand  jury."  It 
has  been  frequently  noticed  that  the  said  reporters,  at 
or  about  the  same  time,  are  to  be  seen  emerging  in 
a  body  from  some  temple  of  Bacchus  conveniently 
near  the  temple  of  justice,  with  a  satisfied  expres- 
sion of  countenance;  and  it  has  been  likewise 
noticed  that  the  grand  jury  are  entirely  oblivious 
to  the  fact  that  the  priest  of  the  first-mentioned 
temple  is  without  orders  or  license,  notwithstand- 
ing its  propinquity  to  the  last-mentioned  temple. 

Next,  the  clerk  calls  the  petit  jury,  and  the  judge, 
if  fresh  in  office,  or  not  looking  for  a  re-election, 
imposes  fines  on  those  delinquents  who  fail  to  appear 
and  ansAver ;  but  such  fines  are  more  for  show  than 
service,  and  are  remitted  on  very  trivial  grounds. 
His  honor  then  announces  that  he  will  hear  excuses 
from  jurymen,  who  desire  to  be  relieved  from  the 
necessity  of  attendance.  These  excuses  are  as  vari- 
ous as  those  of  the  guests  summoned  to  the  feast,  in 
the  parable,  and  comprehend  every  ailing  and  disa- 
bility known  to  medicine,  from  bronchitis  to  bowel 
complaint,  from  piles  to  paralysis,  from  corns  to 
consumption.  Deafness  is  a  standing  excuse  for 
not  sitting,  and  where  satisfactorily  established, 
is  allowed  to  prevail.  A  doubtful  instance  once 
arose  in  northern  New  York,  where  the  juror  alleg- 
ing that  he  could  hear  only  with  great  difficulty, 
the  judge  asked  him  if  he  did  not  hear  his  charge  to 
the  grand  jury,  just  delivered?  "  Why,  yes,"  was 
his  reply,  "  I  heard  it,  but  I  couldn't  make  head  or 
tail  of  it ! " 

If  any  cause  is  ready  for  trial,  the  clerk  calls  a 
jury  especially  for  the  puri)ose.     Perhaps  tliere  are 


THE   CONDUCT   OF   COURTS.  7 

not  names  enough  in  the  box.  "Summon  tales- 
men," says  the  judge.  At  this  announcement  there 
is  an  evident  fluttering  among  the  spectators,  and  if 
the  cause  is  understood  as  likely  to  be  tedious  or 
protracted,  as  many  of  them  escape  by  incontinent 
flight  as  can,  while  tlie  sheriff  singles  out  those  who 
voted  against  liim,  or  those  against  wliom  for  any 
other  reason  lie  holds  a  grudge. 

After  the  exercise  of  a  good  deal  of  professional 
finesse,  a  jury  is  secured,  and  the  plaintiff's  counsel 
opens  the  case.  This  is  an  admirable  opportunity 
for  the  exercise  of  the  imaginative  faculties,  for  the 
jury,  if  the  case  is  strikingly  and  glowingly  pre- 
sented, are  apt  to  have  a  corresponding  idea  of  it 
fixed  in  tlieir  minds,  and  no  matter  how  much  the 
testimony  may  fail  to  support  it,  an  immense  pre- 
ponderance of  opposing  evidence  is  requisite  to 
efface  the  impression. 

Witnesses  are  then  examined.  Their  oath  is  to 
tell  the  truth  and  nothing  but  the  truth  ;  but  this 
means  in  answer  to  the  questions  of  counsel  and 
nothing  beyond.  And  so  if  the  Avitness  is  disposed 
to  tell  a  little  truth  on  his  own  account,  he  is 
checked,  and  his  testimony  is  termed  "irrespon- 
sive." Everybody  is,  of  course,  aware  of  tlie  tor- 
tures inflicted  on  witnesses.  The  popular  belief 
that  no  man,  however  truthful  and  intelligent,  can 
preserve  his  consistency  under  the  fire  of  cross- 
examination,  is  so  firmly  fixed  that  no  efforts  on  the 
part  of  the  profession  can  remove  it.  The  prevail- 
ing difficulty  IS  that  no  witness  is  content  with 
simply  answering  a  question,  and  indeed  very  few 
can  answer  the  simplest  question  at  all.     Suppose 


8  THE    COXDUCT   OF    COURTS. 

the  witness  is  narrating  a  conversation,  and  says 
that  in  the  course  of  it  defendant  called  plaintiff  a 
fool,  a  scamp,  and  a  thief.  "Will  you  swear,"  says 
Counselor  Sharp,  "that  he  used  the  word  thief  ?" 
And  the  answer  will  be  "I  think  he  did,"  "I  am 
quite  sure  he  did,"  or  "I  am  positive  he  did  ;"  or 
any  thing  else  but  yes  or  no,  the  only  possible  an- 
swer to  the  question.  The  witness  is  willing  enough 
and  honest  enough,  but  not  reflective  enough  ;  or 
he  is  obstinate,  and  although  he  sees  the  point,  is 
unwilling  to  admit  that  he  cannot  swear  positively 
to  the  circumstance,  because  he  has  no  doubt  of  it. 
So,  after  a  while,  under  the  skillful  badgering  of 
counsel,  he  becomes  mad  and  almost  desperate, 
affirms  every  thing  his  counsel  asks  him,  negatives 
every  thing  else,  and  thus,  rushing  like  a  bull  at  a 
gate,  beats  out  his  brains  against  the  stubborn  sub- 
tleties of  the  law,  and  then  out  of  court  whines 
about  the  unfairness  of  counsel.  Counsel  are  un- 
doubtedly frequently  unfair  in  the  examination  of 
witnesses,  but  their  unfairness  generally  consists  in 
taking  advantage  of  the  proneness  of  human  nature 
to  be  unfair,  or  its  inability  to  be  candid.  One 
would  suppose  that  lawyers  would  themselves  prove 
good  witnesses,  but  the  contrary  is  the  fact  ;  indeed 
there  is  but  one  class  of  witnesses  less  endurable, 
and  that  is  physicians,  who  cannot  divest  them- 
selves of  the  habit  of  lecturing  and  the  use  of  tech- 
nical language. 

After  the  evidence  is  all  in  on  one  side,  the 
opposing  party  proceeds  to  contradict,  explain, 
modify,  or  discredit,  and  after  he  has  had  his 
"innings,"  the  plaintiff  goes  at  it  again,  and  so  on 


THE   CONDUCT  OF   COURTS.  9 

until  the  case  Avill  admit  of  uo  further  contradic- 
tion, explanation,  modification,  or  discrediting,  and 
then  the  jury  are  ready  to  be  argued  at.  The 
defendant's  counsel  presents  one  view  and  then  the 
plaintiff's  counsel  presents  another  entirely  different, 
each  invariably  assuring  the  twelve  that  in  the 
course  of  his  professional  practice  he  has  never  met 
with  so  clear  a  case  for  his  client,  and  imploring 
them  so  to  decide  that  they  can  lay  their  heads  on 
their  virtuous  pillows  at  night  with  the  jDroud  con- 
sciousness of  having  rightly  discharged  their  duties. 
And  here  let  us  observe,  that  the  compliments  of 
his  honor  to  the  grand  jury  are  nothing  to  the  flat- 
tery and  eulogy  which  the  counsel  pour  upon  the 
heads  of  the  petit  jury.  If  a  man  wants  to  find  out 
what  a  surprisingly  clever  and  estimable  fellow  he 
is,  ]et  him  get  himself  impaneled.  But  as  there  is 
no  rose  without  its  thorn,  so  the  jury  are  not  exclu- 
sively treated  to  these  sweets.  The  denunciations 
which  the  counsel  respectively  avow  themselves 
ready  to  heap  on  their  heads,  supposing  them  so 
lost  to  honor  and  rectitude  as  to  decide  against 
their  client,  are  almost  as  fearful  to  contemplate  as 
the  curse  of  the  Catholic  church  upon  backsliders  and 
heretics,  and  it  is  to  avoid  thi-s  awful  contingency, 
perhaps,  that  juries  so  frequently  disagree.  This  is 
the  way  in  which  these  things  strike  a  layman,  but 
we  suppose  that  among  the  profession  they  are  all 
received  in  a  Pickwickian  sense.  After  the  jury 
have  been  thoroughly  kneaded  in  this  way,  the 
judge  flattens  them  out  with  his  rolling-pin  of  law, 
and  stamps  them  with  almost  any  tin  jjattern  he 
pleases,  in  the  shape  of  a  charge.  The  counsel  then 
2 


10  THE   CONDUCT   OF    COURTS. 

have  a  sharp  encounter  with  his  honor,  to  entrap 
him  in  some  erroneous  charge  or  a  refusal  to  make 
some  proper  one,  and  thus,  obtain  an  exception  on 
which  to  found  a  successful  appeal.  The  jury  then 
retire  in  charge  of  one  of  the  paralytics  and  a  pole, 
and  are  kept  in  strict  seclusion  on  a  light  diet  of 
water,  until  they  agree,  or  until  in  case  of  disagree- 
ment the  Judge  chooses  to  release  them.  The  pro- 
priety of  starving  a  Jury  into  a  verdict  is  one  of  the 
good  Jokes  connected  with  the  law,  which  it  would 
take  me  too  long  to  explain.  The  English  of  old 
times,  having  a  much  keener  sense  of  humor  than 
ourselves,  used  to  cart  the  Jury  around,  following 
the  Judge  on  his  circuit,  until  they  should  agree ; 
and  it  is  even  said  that  some  intensely  witty  and 
pleasant  fellows,  like  Scroggs  and  Jeffries,  when  the 
wretched  creatures  proved  unyielding,  would  some- 
times get  rid  of  them  by  dumping  them  into  some 
convenient  ditch.  It.  is  true  that  now-a-days  the 
counsel  usually  consent  that  the  Jury  may  be  fed, 
but  the  theory  of  the  law  is  now.  Just  as  it  was  under 
the  aforesaid  humorous  judges,  that  they  are  kept 
''without  meat  or  drink,  water  excepted." 

And  this  is  the  ordinary  course  of  a  trial  at  law. 
In  all  these  proceedings,  that  which  strikes  the 
spectator  most  forcibly  is  the  prevalence  of  forms. 
Some  of  these  forms  are  as  old  as  the  common  law 
itself,  and  as  little  varied  by  lapse  of  time  as  the 
street  cries  of  London.  These  seem  singular,  but 
are  necessary.  Legal  affairs  must  be  transacted  in 
some  settled  and  unvarying  method.  The  error  is 
in  not  accommodating  these  forms  to  the  growing 
intelligence  and  civilization  of  the  age,  and  in  pre- 


THE    CONDUCT   OF   COURTS.  11 

serving  in  the  nineteenth  century  the  quaint  prac- 
tices of  the  sixteenth.  For  instance,  it  would  be 
diflBcult  to  assign  any  good  reason  for  the  practice  of 
starving  a  jury  into  agreement,  and  as  the  practice 
has  fallen  into  disuse,  why  should  we  preserve  the 
theory  ? 

Another  striking  feature  of  trials  at  law  is  the 
apparent  equality  of  the  contest.  An  unsophisti- 
cated observer  would  suppose,  that  as  one  side  must 
be  right  and  the  other  must  be  wrong,  it  would 
clearly  and  speedily  appear  which  is  right  and 
which  is  wrong.  But  two  skillful  lawyers  are  like 
two  experts  at  any  game  of  skill  or  endurance,  and 
the  result  is,  that  the  clearest  case  becomes  at  least 
somewhat  doubtful,  and  the  event  quite  problemati- 
cal. The  arguments  on  both  sides  seem  irrefrag- 
able as  they  are  separately  presented.  The  advocates 
elude  one  another's  grasp  like  weasels.  They  are 
lubricated  all  over  with  the  oil  of  sophistry  and 
rhetoric.  It  is  quite  as  difficult  to  put  forward  a 
suggestion  that  is  not  plausibly  answered,  as  it  is 
to  make  a  run  at  base  ball,  or  a  count  at  billiards 
after  a  skillful  player  has  left  the  balls  in  a  safe 
position. 

Another  conclusion  forced  on  the  mind  by  observ- 
ing the  proceedings  of  courts  is,  that  advocacy  is 
much  more  easy  than  impartiality ;  that  it  is  almost 
impossible  for  man  to  divest  himself  of  prejudice 
and  to  overcome  the  force  of  habit  and  education. 
There  is  only  one  judge  who  is  impartial,  and  even 
he  has  strong  leanings  against  the  wicked.  So  in 
almost  every  case  we  hear  the  judge  discussing  the 
facts,  and  arguing  on  probabilities  and  credibilities. 


12  THE    CONDUCT   OF   COURTS. 

and  ill  the  same  breath,  instructing  the  jury  that 
these  questions  are  their  jDeculiar  province  and 
entirely  outside  his  own.  Human  nature  is  alike 
all  over  the  world,  in  all  times,  in  all  stations. 
Man  is  a  disputatious  animal,  and  logically  dies 
hard.  Adam  must  needs  dispute  with  the  arch- 
angel. Therefore  we  must  not  blame  our  judges 
for  taking  sides.  The  Irishman's  hands  itch  for  a 
''shillalah"  when  he  sees  a  "free  fight"  going  on 
between  a  few  of  his  friends,  not  so  much  for  love 
of  either  party  as  to  gratify  an  innate  pugnacity, 
and  if  his  own  skull  is  cracked  in  the  encounter  he 
bears  no  malice.  So  the  judge,  when  he  sees  so 
much  fine  logic  flying  about  the  heads  of  the  jury, 
yearns  himseK  to  have  an  intellectual  whack  at 
them,  and  sometimes  in  his  ardor  his  reasoning 
recoils,  like  the  eastern  boomerang,  upon  his  own 
reverend  head. 

But  finally,  the  most  remarkable  sensation  that 
courts  of  justice  are  subject  to,  is  experienced  at 
the  sight  of  a  pretty  woman.  Let  a  comely  and 
well-dressed  woman  enter  the  court-room,  and  at 
the  first  rustle  of  her  silken  gown,  every  man 
present  seems  to  lose  his  head.  Talk  of  the  equality 
of  the  sexes  !  A  man  stands  no  more  chance  in  a 
lawsuit  against  a  good-looking  woman,  esiaectally  if 
she  is  in  weeds,  than  he  does  of  being  saved  with- 
out repentance,  or  of  being  elected  to  congress 
without  spending  money.  Portia  would  have  been 
even  more  potent  in  petticoats.  The  lawyer  who 
should  undertake  to  cross-examine  a  woman  sharply 
would  be  considered  a  brute.  Even  to  ask  her  age 
is  a  hazardous  experiment.     When  she  testifies  to 


THE    CONDUCT    OF   COURTS.  13 

hearsay,  or  what  she  said  herself,  or  what  she 
thought  or  thinks,  or  any  thing  else  improper,  the 
judge  merely  lays  down  his  pen  and  smiles,  and  the 
jury  believe  every  word  of  it.  And  whether  party 
or  witness,  let  her  take  out  a  black-bordered  white 
handkerchief,  and  put  it  to  her  eyes,  or  nose — it 
makes  no  difference  which  — and  the  jury  will  treat 
her  antagonist  with  about  as  much  consideration  as 
the  early  Christian  martyrs  received  from  the  wild 
beasts  at  Ephesus.  A  man  may  be  put  off  with 
sixpence  ;  a  woman's  verdict  always  carries  costs. 
Even  the  gallows  has  no  terrors  for  her  ;  its  noose 
relaxes  and  refuses  to  clasp  her  fair  neck  ;  it  is  only 
when  it  embraces  Adam's  apple  that  it  preserves  its 
hold.  And  yet  the  women  are  trying  to  break  this 
spell  by  becoming  lawyers  and  jurymen  !  It  would 
not  surprise  me  if  they  should  succeed  in  getting 
hanged,  if  they  accomplish  this  purpose.  The 
charm  of  their  unaccustomed  and  artless  presence 
will  be  gone,  and  if  they  demand  the  privilege  of 
acting  like  men,  they  will  perhaps  be  treated  like 
men. 


14  THE    LAW    OF   SUNDAY. 


THE  LAW  OP  SUNDAY. 


Sunday  is  not  a  court  day  —  dies  Dominicus  non 
est  juridicus.*  Service  of  process,  arrest  in  civil 
actions,  and  all  that  sort  of  thing,  are  prohibited 
on  that  day,  universally.  In  this  respect,  however, 
it  is  not  much  more  sacred  than  election  day.  No 
trial  can  be  held  on  Sunday.  The  only  trials  which 
the  lawyer  can  then  lawfully  be  subjected  to  are 
those  which  he  undergoes  in  listening  to  the  clergy, 
who  make  him  a  frequent  subject  of  reproach. 
The  only  court  permissible  on  that  day  is  such  as 
lovers,  according  to  immemorial  custom,  pay  to  the 
objects  of  their  adoration.  Sunday  was  not  always 
held  thus  sacred  from  the  demands  of  Themis.  It 
did  not  become  so  until  the  year  517.  Originally 
the  Christian  courts  were  open  on  Sunday  to  pre- 
vent resort  to  the  heathen  courts.  But,  with  these 
exceptions,  all  business  transactions  are  valid  at 
common  law,  "  however  wrong  or  unbecoming  in 
morals  they  may  be  considered."  f  It  is  not  pro- 
posed in  this  paper  to  examine  the  law  of  Sunday 
with  much  minuteness,  or  with  any  regard  to  the 
modifications  of  the  common  law  wrought  by  the 
numerous  statutes  of  the  various  States  of  our 
Union. 

Washington,  in  his  diary,  under  date  of  Novem- 
ber 8,  1789,   in  journeying  through  Connecticut, 

*  Stoiy  V.  Elliott.  8  Cowen.  27.  +  Merritt  v.  Earle,  31  Barb.  41. 


THE   LAW   OF   SUXDAY.  15 

remarks,  ''It  being  contrary  to  law  and  disagree- 
able to  the  people  of  this  State  to  travel  on  the 
Sabbath  day,  and  my  horses,  after  passing  through 
such  intolerable  roads,  wanting  rest,  I  stayed  at 
Perkins'  tavern  (which,  by  the  by,  is  not  a  good 
one)  all  day;  and  a  meeting-house  being  within  a 
feio  rods  of  the  door,  I  attended  morning  and  even- 
ing service,  and  heard  very  lame  discourses  from  a 
Mr.  Pond."  (Pond's  sermons  had  probably  tra- 
versed the  same  roads. )  Connecticut  has  improved 
her  inns  and  the  intellectual  character  of  her 
preaching,  and  has  mended  her  ways,  but  has  not 
altered  the  particular  law  spoken  of.  At  least, 
Sunday  traveling  and  work  are  still  prohibited, 
except  in  cases  of  necessity  and  mercy.  The  run- 
ning of  the  Sound  steamboats  seems  to  be  considered 
necessary  or  merciful,  however,  and  as  an  incident, 
it  was  held  by  a  New  York  court,  that  the  fact 
that  the  plaintifE  left  the  boat  on  Sunday  made  no 
difference,  under  the  Connecticut  Sunday  law,  as 
to  her  right  to  call  for  her  trunk.*  If  delivering  it 
would  have  been  work  or  labor,  within  the  statute, 
it  was  a  work  of  necessity.  And  so,  where  she 
neglected  to  call  for  her  trunk  for  seventeen  hours, 
and  it  was  put  in  the  steamboat  company's  ware- 
house, where  it  was  burned,  it  was  held  that  she 
could  not  hold  them  as  common  carriers.  As  to 
the  Sunday  work,  she  and  they  were  in  the  same 
boat. 

In  Massachusetts  it  is  not  only  unlawful  to  travel 
on  Sunday,  except  from  necessity  or  charity,  but  a 

*  Jones  V.  Norwich  and  N.  Y.  T.  Co..  50  Barb.  193. 


16  THE   LAW    OF    SUNDAY. 

fine  of  $10  may  be  inflicted  for  every  violation. 
There  is  certainly  no  fun  in  that,  but  there  is  in 
some  of  the  decisions  on  the  subject.  A  person 
cannot  legally  travel  on  the  Lord's  day  for  the  pur- 
pose of  supplying  fresh  meat  to  marketmen,  whom 
his  master  has  agreed  to  supply,  although  he  could 
not  do  this,  in  addition  to  his  other  work,  on  Mon- 
day morning,  and  his  master  was  too  sick  to  do  it 
himself;  and  consequently,  if  while  so  traveling 
he  sustain  an  injury  on  account  of  a  defective  high- 
way, he  cannot  recover  damages  therefor.*  The 
plaintiff  offered  to  prove,  among  other  things,  that 
he  was  his  master's  only  servant,  and  at  that  season 
fresh  meat  was  only  fit  for  use  on  Monday  when 
slaughtered  and  dressed  on  Sunday.  But  the  judge 
said,  that  "it  was  too  clear  to  admit  of  discussion," 
and  so  this  wicked  servant  had  to  bear  his  smarts 
unrecompensed.  The  judge  undoubtedly  was  not 
one  of  the  persons  who  suffered  from  the  "tempo- 
rary inconvenience  caused  by  the  failure  to  supply 
provisions  on  Monday."  If  he  had  been,  he  might 
have  undergone  a  state  of  mind  which  even  the 
recollection  of  the  previous  day's  exercises  could 
not  have  soothed.  But,  as  it  was,  the  court  held 
that  the  servant  received  a  meet  punishment  for 
his  transgression,  and  thus  the  sound  morality 
taught  at  the  famous  theological  seminary  at 
Andover,  and  recognized  by  the  Massachusetts 
statutes,  saved  that  town  from  a  bill  of  damages. 
Truly,  virtue  is  its  own  reward.  But  this  is  not 
the  only  case  showing  the  prudence  with  which 

*  .Tones  V.  Inhabitants  of  Andover,  10  Allen.  IH 


THE   LAW   OF   SUNDAY.  17 

Massachusetts  reconciles  a  due  observance  of  Sun- 
day with  the  inviolability  of  the  public  purse.  It 
is  a  work  of  necessity  for  the  public  to  repair  the 
highway  on  Sunday  in  order  to  prevent  accidents 
on  Monday.*  So  held  in  an  action  for  damages 
occurring  on  Monday,  through  a  defect  in  the  high- 
way, the  defendant  setting  up  as  a  defense  that  it 
would  have  been  unlawful  to  repair  the  road  on 
Sunday.  The  court  wisely  held  that  no  day  was 
fitter  than  Sunday  for  a  community  to  mend  its 
ways. 

To  visit  one's  father  on  Sunday  is  a  work  of 
necessity  or  charity;  so  held  in  Pennsylvania,  in 
the  case  of  the  hire  of  a  horse  and  wagon.f  But  in 
Massachusetts  it  was  left  undecided  whether  a 
young  man  who  worked  at  a  distance  during  the 
week,  and  received  injuries  arising  from  a  defect 
in  the  highway,  while  proceeding  to  visit  his 
betrothed  on  Sunday,  was  a  lawful  traveler.  J  This 
is  a  case  calculated  to  arouse  the  indignation  of 
every  well-regulated  young  woman  in  the  land.  Is 
a  mere  father  to  be  preferred  to  a  contingent  wife 
and  mother?  It  might,  in  the  long  run,  be  a  work 
of  mercy  to  the  young  woman  if  the  young  man 
would  let  her  alone,  or  confine  his  attentions  to 
epistolary  communications,  thus  giving  her  an 
opportunity  to  take  her  natural  rest  and  sleep,  and 
reflect  on  the  lessons  of  the  day.  But  such  "odor- 
ous comparisons  "  between  fathers  and  contracted 
wives  are  not  to  be  tolerated. 


*  Flagg  V.  Inhabitants  of  Milbury,  4  Cush.  243. 
+  Logan  V.  Matthews.  6  Penn.  St.  417. 
tBufflngton  v.  Swansy,  2  Am.  Law  Rev.  2.'55. 

3 


18  THE    LAW   OF    SUNDAY. 

The  New  York  statute,  with  a  view  to  restricting 
inordinate  and  excessive  church-going,  has  wisely 
provided  that  no  one  shall  ride  more  than  twenty 
miles  to  church  on  Sunday.  In  England  they  have 
very  liberal  ideas  as  to  what  constitutes  a  traveler. 
A  statute  provided  that  no  licensed  victualer  should 
sell  wine  or  ale  on  Sunday,  except  "  as  refreshment 
for  travelers."  (This  piits  one  in  mind  of  the  late 
lamented  Artemus  Ward,  who  never  indulged  in 
intoxicating  drinks,  "except  as  a  beverage.")  A. 
walked  on  Sunday  to  a  spa,  two  and  a  half  miles 
from  his  house,  for  the  purpose  of  drinking  the 
mineral  water  there  for  the  sako  of  his  health,  and 
was  supplied  with  ale  at  a  hotel  at  the  spa.  He  was 
held  to  be  a  traveler  within  the  exception*.  This 
statement  leads  one  to  suspect  that  the  attraction 
at  the  spa  was  the  hotel  and  not  the  mineral  water, 
and  that  all  that  ailed  the  traveler  was  what  he  pro- 
cured at  the  hotel.  And  in  Massachusetts  it  was 
mercifully  held,  that  one  who  received  injuries  on 
Sunday,  through  a  defect  in  a  street  in  Boston, 
while  walking  half  a  mile  to  his  own  house,  was  not 
traveling,  within  the  meaning  of  the  Lord's  day 
act.f  If  the  defendants  had  shown  that  the  plaint- 
iff had  accomjilished  half  a  mile  in  a  straiglit  line, 
the  decision  must  have  been  different. 

Massachusetts  was  impartial  in  its  administration 
of  its  laws,  at  all  events,  for  in  1793  the  Chief  Jus- 
tice of  the  State  and  his  associates  were  indicted  for 
traveling  on  Sunday,  and  were  compelled  to  peti- 
tion the  legislature  to   authorize  a  nolle  prosequi. 

*  Peplow  r.  Richardson,  4  C.  P.  168. 

t  Hamilton  v.  City  of  Boston,  3  Am.  Law  Rev.  2.36. 


THE    LAW   OF   SUISTDA-Y.  IS 

Although  one  carrying  the  mails  on  Sunday  could 
not  be  arrested,  yet  his  passengers  might  be.  This 
is  hardly  consistent  with  Scripture:  "  Offenses  must 
needs  come,  but  woe  to  him  by  whom  the  offense 
Cometh." 

It  is  a  misdemeanor  in  Massachusetts  to  perform 
any  labor  on  Sunday,  except  work  of  necessity  or 
charity.  The  principle  of  the  maxim,  7ie  sutor  ultra 
crepidam,  was  enforced  in  a  recent  case  in  that  pre- 
cise commonwealth,*  in  which  the  defendant,  a  shoe- 
maker, was  indicted  for  hoeing  in  his  garden  on  the 
Lord's  day.  The  only  witness  for  the  government  — 
an  early  riser,  it  seems  —  testified,  that  about  eight 
o'clock  in  the  morning  of  Sunday,  he  saw  this  dan- 
gerous shoemaker  hoeing  for  about  an  hour  in  the 
garden  near  his  house.  The  defendant  testified, 
that  for  two  days  next  preceding  the  day  in  ques- 
tion, he  had  not  worked  at  his  trade,  but  had  given 
the  greater  part  of  his  time  to  cultivating  his  crops 
at  home,  and  had  been  engaged  in  that  labor  by 
moonlight  on  Saturday  evening  ;  that  when  he  left 
off  work  on  that  evening,  "a  few  hills  remained 
unfinished,  and  in  very  bad  condition,  and  suffer- 
ing for  want  of  hoeing ; "  and  these,  we  infer,  he 
finished  on  the  next  morning,  contrary  to  the  form 
of  the  statute  in  that  case  made  and  provided,  and 
being  thereunto  moved  and  instigated  by  the  wiles 
of  the  devil.  It  did  not  apj^ear  whether  or  not  he 
went  to  church  after  it.  Probably  not ;  how  could 
he  with  such  a  weight  of  wickedness  on  his  soul? 
He  asked  the  court  to  submit  the  question  of  the 

*  Commonwealth  v.  Josselvn,  97  Mass.  411, 


20  THE    LAW    OF   SUNDAY. 

moral  propriety  and  fitness  of  the  work  to  the  jury, 
but  this  was  refused ;  he  was  convicted,  the  court 
on  appeal  overruled  his  exceptions,  and,  for  aught 
we  know,  he  is  pegging  shoes  for  the  benefit  of  the 
righteous  old  Bay  State,  while  ill  weeds  disfigure  his 
garden-patch,  and  his  temporary  widow  and  his 
little  ones  "go  bare,"  like  the  little  colt  in  the  nur- 
sery rhyme.  It  is  to  be  hoped,  if  this  wretched 
shoemaker  ever  emerges  from  durance,  that  he  will 
reform  and  try  to  become  a  worthy  member  of  soci- 
ety, but  we  have  great  fear  and  little  hope  of  him. 
The  domestic  tragedy  thus  inadequately  set  forth  is 
cordially  recommended  to  the  dramatist  of  the 
American  Tract  Society,  who  cannot  fail  to  turn  it 
to  good  use,  by  making  it  the  subject  of  a  glowing 
diatribe  suited  to  the  meridian  of  Massachusetts. 
The  same  volume  of  reports  also  contains  an  account 
of  another  dreadful  infraction  of  human  and  divine 
law,  which  is  worthy  of  our  consideration.*  The 
defendants,  who  were  farmers,  had  a  license,  for 
which  they  made  an  annual  payment,  from  the 
owner  of  a  beach,  about  four  miles  from  their  resi- 
dence, to  gather  sea-weed  thereon,  which  is  valua- 
ble and  in  common  use  for  manure.  A  storm  on 
Saturday  having  thrown  up  a  large  quantity  of  sea- 
weed, the  defendants,  about  ten  o'clock  on  Sunday 
evening,  gathered  it  from  the  space  between  high 
and  low-water  mark,  and  drew  it  higher  up  the 
beach,  the  tide  being  low,  and  a  strong  wind  blow- 
ing in  a  direction  which  had  frequently  caused  the 
^ea-weed   to  float  away  and  be  lost.     Under   the 

*  Commonwealth  v.  Sampson,  97  Mass.  407. 


THE   LAW    OF   SUNDAY.  21 

instructions  of  the  court  the  jury  found  the  defend- 
ants guilty,  and  their  exceptions  were  overruled. 
The  things  which  may  lawfully  be  done  on  Sunday 
were  enumerated  in  the  opinion  of  the  court :  **  To 
save  life,  or  prevent  or  relieve  suffering,  and  this  in 
the  case  of  animals  as  well  as  men  ;  to  prepare 
needful  food  for  man  and  beast ;  to  save  property, 
as  in  the  case  of  fire,  flood  or  tempest,  or  other  un- 
usual peril,  would  unquestionably  be  acts  which  fall 
within  the  exceiDtions.  But  it  is  no  sufficient  ex- 
cuse for  work  on  the  Lord's  day,  that  it  is  more 
convenient  or  profitable  if  then  done  than  it  would 
be  to  defer  or  omit  it."  (Now,  is  it  any  worse  to 
acquire  property  on  Sunday  than  to  save  it  on  that 
day? — ^property  which  can  be  acquired  only  on  that 
day?  Tlie  judge  answers  this  question  in  his  next 
sentence. )  ''  If  a  vessel  had  been  wrecked  upon  the 
beach,  it  would  have  been  lawful  to  work  on  Sun- 
day for  the  preservation  of  property  lohich  might  he 
lost  ~by  delay.  But  if  the  fish  in  the  bay  or  the 
birds  on  the  shore  happened  to  be  uncommonly 
abundant  on  the  Lord's  day,  it  is  equally  clear  that 
it  would  furnish  no  excuse  for  fishing  or  shooting 
on  that  day.  How  it  would  he  if  a  whale  hapjjened 
to  he  stranded  on  the  shore,  we  need  not  determine." 
(In  answer,  probably,  to  an  illustration  of  counsel.) 
''Whether  a  case  wholly  exceptional,  and  involving 
a  large  amount  of  accessible  value,  would  require 
any  modification  of  the  rule  is  not  now  in  ques- 
tion." He  then  goes  on  to  say  that  the  deposits  of 
sea-weed  are  frequent;  that  in  this  case  the  property 
had  not  been  reduced  to  possession,  and  afterward 
put  to  hazard  ;  that  equally  good  opportunities  of 


2.2  THE   LAW    OF   SUNDAY. 

gathering  it  would  recur,  and  that  the  gathering  of 
it  is  an  ordinary  branch  of  agricultural  labor.  The 
case  does  not  disclose  how- the  witnesses  for  the  com- 
monwealth happened  in  a  position  to  have  their 
quiet  and  peace  of  mind  disturbed  by  the  riotous 
and  unholy  conduct  of  the  defendants  on  that 
beach,  "a  considerable  distance  from  any  house 
or  public  road,"  at  ten  o'clock  at  night.  If  the 
lateness  of  the  hour  were  not  inconsistent  with  such 
a  theory,  we  might  imagine  that  they  availed  them- 
selves of  a  spy-glass,  as  did  those  old  maids  who 
complained  of  a  man  who  went  a-swimmiug  half  a 
mile  from  their  house.  And  how  the  naughty 
judge  should  tolerate,  even  in  imagination,  an  ex- 
ception in  favor  of  that  "whale,"  with  the  example 
of  Jonah  before  his  mind,  we  cannot  imagine.  And 
suppose  a  whale  should  come  along  on  Sunday  ;  non 
constat  that  another  would  not  come  on  Monday, 
and  a  whole  school  during  the  week.  But  his 
honor's  mind  was  evidently  affected  by  the  idea  that 
a  whale  on  the  beach  is  worth  two  in  the  sea,  and 
that  "  a  large  amount  of  accessible  value"  is  not  to 
be  passed  by,  even  on  Sunday.  The  idea  is  not  a 
new  one,  but  has  long  prevailed  in  the  coast  towns 
of  Cape  Cod.  A  clergyman  was  once  holding  forth 
to  his  congregation  on  Sunday  morning — on  the 
vanity  of  human  riches,  perhaps  —  when  a  man 
rushed  in  with  the  alarm,  "Skewner  ashore!" 
The  audience  arose  en  masse,  and  made  a  stampede 
for  the  doors,  but  were  arrested  by  the  voice  of 
their  shepherd,  who  exclaimed  in  stentorian  tones, 
*'  Brethren,  before  you  leave,  I've  one  last  word  to 


THE   LAW    OF   SUNDAY.  23 

give  ye,"  at  the  same  time  descending  the  pulpit 
stairs,  and  walking  deliberately  down  the  aisle, 
"  and  that  is,"  continued  he,  as  he  joined  the  crowd 
at  the  door,  ^' let's  all  start  fair  !"  and  off  he  went 
like  arrow  from  bow,  and  was  the  first  man  on 
the  scene  of  ''  accessible  value."  Let  that  judge 
pray  that  no  whale,  or  other  leviathan  freighted 
with  ''accessible  value,"  may  come  ashore  on  Sun- 
day near  where  he  is  holding  court.  It  is  to  be 
feared  that  such  an  event  would  degrade  the  scales 
of  justice  into  an  instrument  for  weighing  blubber 
and  bone,  in  his  imagination.  After  reading  these 
last  two  cases,  no  man  will  disagree  with  the  editor 
of  the  American  Laiu  Review,  who,  remarking  on 
them,  says:  "It  is  difiicult  to  restrain  a  move- 
ment of  indignation  that  a  law  under  which  such 
prosecutions  are  possible  still  stands  on  the  statute 
book;"  nor  with  Judge  Grier,  who  says  :  "The 
Massachusetts  decisions  upon  the  Sunday  law  de- 
pend upon  the  peculiar  legislation  and  customs  of 
that  State,  more  than  on  any  general  principles 
of  justice  or  law."  * 

But  Massachusetts  is  not  always  so  stern.  She 
kindly  admits  that  a  note  dated  on  Sunday,  but 
made  and  delivered  on  a  secular  day,  is  not  infected 
with  wickedness,  but  is  binding,  f  "  Blowing  one's 
own  horn  "  is  unlawful  on  Sunday,  in  Massachusetts, 
it  seems.  X  So  held  in  the  case  of  a  mail-carrier,  pro- 
vided it  is  done  "to  the  disturbance  of  serious  peo- 


*  Philadelphia  v.  Towboat  Co.,  23  How.  U.  S.  209. 

t  Stacy  11.  Kemp,  97  Mass.  166. 

t  Commonwealth  v.  Kjiox  6  Mass.  76. 


24  THE    LA.W    OF   SUNDAY. 

pie."  This  presents  a  vivid  idea  of  the  amount  of 
self-denial  exercised  by  the  inhabitants  of  Boston 
on  that  day. 

Vermont  does  not  agree  with  Massachusetts  in  its 
treatment  of  the  gifts  of  nature.  Thus  in  Wliit- 
co7nh  V.  Oilman,  35  Vt.  297,  it  was  held  that,  as  a 
matter  of  law,  it  is  not  always  unnecessary  to  work 
on  Sunday  to  prevent  a  great  waste  of  sap  in  mak- 
ing maple  sugar.  A  religious  man,  say  the  court, 
should  set  tubs  enough  on  Saturday  ;  but  if  the 
run  is  extraordinary — why,  verb.  sap. 

In  Phillips  V.  Lines,  4  Clark  and  Finnelly,  234, 
it  was  held  by  the  House  of  Lords,  reversing  the 
decision  of  the  magistrates  of  Dundee,  that  an  ap- 
prentice to  a  barber  in  Scotland,  bound  by  his 
indentures  "not  to  absent  himself  from  his  mas- 
ter's business,  on  holiday  or  week  day,  late  hours  or 
early  without  leave,"  was  justified  in  going  away  on 
Sundays,  without  leave,  and  without  shaving  his 
master's  customers.  The  magistrates,  however, 
held  that  it  was  not  "  lawful  for  him  to  work  in  the 
making  of  wigs  "  on  Sunday  —  an  artificial  distinc- 
tion. In  the  argument,  the  cases  of  shaving  a 
maniac's  head,  or  that  of  a  man  who  had  sustained 
a  fracture  of  the  skull,  were  considered  exceptional. 
In  Maine,  too,  a  barber  was  recently  arrested  for 
keeping  open  shop  on  Sunday.  But  the  newspa- 
pers inform  us  that  Massachusetts,  oblivious  of 
these  precedents,  and  of  her  own  unbroken  line  of 
decisions,  has  recently,  in  the  person  of  one  of  her 
judges,  declared  that  shaving  is  a  work  of  neces- 
sity, and  that  barbers  cannot  be  punished  for  "  pro- 
fessional" labor  at  any  time. 


THE   LAW   OF   SUNDAY.  35 

A  contract  to  publish  an  advertisement  in  a  Sun- 
day newspaper  is  unlawful,  and  the  price  cannot  be 
recovered.*  It  is  the  exposure  to  sale  and  conse- 
quent disturbance  of  the  quiet  of  the  day,  and  not 
the  sale  itself,  which  in  New  York  constitutes  the 
illegality  of  the  transaction.  The  judge  remarks 
beyond  this:  "Indeed,  in  any  view  of  religious 
obligation,  it  would  be  difficult  to  contend  that  the 
reading  of  advertisements  in  a  Sunday  newspaper, 
or  aiding  a  person  to  do  so,  is  a  work  of  either  neces- 
sity or  charity.  The  mind,  certainly,  on  that  day 
needs  no  such  sustenance.  And  even  as  a  mere 
matter  of  taste,  it  must  be  admitted  that  common 
business  advertisements  of  mere  buying  and  selling 
are  a  very  unsuitable  outfit  for  a  '  feast  of  reason. ' 
Six  days,  at  all  events,  of  such  diet  are  enough. 
Thought  perpetually  running  in  one  channel,  like 
matrimony  in  one  family,  dwarfs  the  intellect.  It 
is  rather,  therefore,  a  work  of  charity  in  such  cases 
to  withhold  than  to  give.  Abstinence,  not  susten- 
ance, is  what  is  needed." 

In  New  Hampshire  only  such  ordinary  labor  or 
business  is  forbidden  as  is  carried  on  ''  to  the  dis- 
turbance of  others."  A  legal  definition  of  tbis  term 
may  be  found  in  a  case  in  which  a  contract  for  the 
sale  of  a  horse  was  made  on  Sunday,  and  a  note 
given,  at  the  house  of  the  plaintiff,  whose  wife  was 
present  reading  a  newspaper,  f  The  court  held  the 
note  void,  the  giving  of  it  being,  under  the  circum- 
stances, a  "disturbance  of  others,"  although  no 
complaint  of  the  disturbance  was  made!     It  is  hard 

*  Smith  V.  Wilcox,  19  Barb.  581 ;  24  N.  Y.  353. 
+  Vamey  v.  French,  19  N.  H.  233. 

4- 


JJ6  THE    LAW    OF   SUNDAY. 

to  understand  the  soundness  of  this  ruling,  it  not 
appearing  that  the  wife  ''took  any  note"  of  what 
was  going  on.  How  could  the  court  deem  the  wife 
an  "  other,"  when  husband  and  wife  are  one?  Be- 
sides, how  could  they  hold  that  the  wife  was  "dis- 
turbed," unless  it  appeared  that  her  attention  was 
distracted  from  her  newspaper?  So  far  as  the  case 
discloses,  the  newspaper  was  not  a  religious  one, 
which  adds  to  our  doubts.  Could  she  lawfully  read 
any  other?  and  if  she  were  engaged  in  an  illegal 
undertaking,  how  could  she  be  ' '  disturbed  ?  "  But, 
perhaps,  it  is  to  be  presumed  that  it  was  a  religious 
paper,  and  so  careful  of  human  rights  is  the  law, 
that  it  will  not  permit  one  to  be  disturbed  in  his 
presumably  lawful  occupation,  even  where  he  is 
unconscious  of  the  disturbance. 

A  man  may  make  his  will  on  Sunday,  anywhere, 
even  in  Massachusetts.*  In  that  State  the  right 
seems  to  be  put  on  the  ground  of  its  "fitness  and 
morality."  In  New  Hampshire  it  seems  to  be  suj)- 
ported  by  the  numerous  good  words  usually  placed 
at  the  commencement  of  the  document,  f  the  coun- 
sel in  their  brief  having  made  "  a  most  interesting 
collection  of  the  opening  words  of  wills,  selected 
through  a  period  of  a  hundred  years,"  and  arguing 
therefrom  that  the  act  is  usually  regarded  in  New 
England  as  a  religious  one.  Truly,  if  we  trust  to 
wills  and  epitaphs,  the  world  has  lost  none  but 
religious  people.  Wliat  a  shock,  then,  we  receive 
in  a  Pennsylvania  case,  which  upholds  the  right 
mainly  on  the  ground  that  the  will  does  not  take 

*  Bennett  v.  Brooks,  9  Allen,  452. 

+  Perkins  v.  George,  1  Am.  Law  Rev.  755. 


THE    LAW   OF   SUNDAY.  27 

effect  uutil  the  testator's  death!  *  But  suppose  the 
testator  should  afterward  die  on  a  Sunday?  Would 
not  that  render  the  execution  of  the  will  unlaw- 
ful? 

The  author  of  "  Lacon  "  says  :  "As  no  roads  are 
so  rough  as  those  which  have  just  been  mended,  so 
no  sinners  are  so  intolerant  as  those  who  have  just 
turned  saints."  And  so  we  find  the  following  com- 
paratively recent  decision  in  Arkansas,!  which  a 
writer  in  the  Lmu  Review  characterizes  as  "  one  of 
too  great  strictness  of  interpretation."  The  de- 
fendant was  poor;  had  no  implements  to  cut  his 
wheat,  which  was  wasting  from  over-ripeness;  and 
could  borrow  none  until  Saturday  evening.  He 
exchanged  work  with  his  neighbors  during  the 
week,  hired  a  negro,  and  cut  his  own  wheat  on 
Sunday.  Held,  no  justification  for  breaking  the 
Sabbath.  This  is  quite  different  from  the  horse- 
races, gambling,  and  duelling  which  formerly  en- 
livened the  Sabbath  in  that  State. 

Theaters  have  met  with  very  little  encouragement 
at  the  hands  of  the  judiciary.  Thus  in  New  York 
it  is  held  that  the  law  forbidding  the  opening  of 
theaters  on  Sunday  does  not  deprive  the  citizen  of 
his  property,  within  the  meaning  of  the  constitu- 
tion of  that  State,  J  although  it  is  easy  to  be  seen 
that  it  may  of  his  "  properties  ; "  and  in  California 
they  have  decided  theatricals  to  be  among  the 
"barbarous  and  noisy  amusements "  forbidden  on 
Sunday  §  —  a  salutary  thrust  at  ranting  actors. 

*  Beitenman's  Appeal,  55  Perm.  183. 
+  State  V.  Goff,  20  Ark.  S89. 
X  LindenmuUer  v.  People,  33  Barb.  548. 
§  People  V.  McGuire,  26  Cal.  635. 


5iS  THE    LAW    OF   SUNDAY. 

In  England  the  disposition  of  late  years  has 
been  to  construe  Sunday  law  very  liberally,  and  not 
to  presume  any  thing  in  favor  of  those  claiming  the 
infraction.  A  very  marked  contrast  to  Varney  v. 
French  is  Triggs  v.  Lester  (Law  Rep.  1  Q.  B.  259), 
in  which  it  was  held  that  driving  with  horses  a  van 
in  which  calves  are  being  conveyed  to  market,  is 
not  within  a  statute  which  forbids  any  drover,  or 
other  person,  from  "conducting  or  driving"  any 
cattle  or  horses  through  the  streets  on  Sunday. 
The  statute  in  question  is  aj)plicable  only  to  ''merry 
Islington,"  a  great  cattle  market,  and  was  probably 
passed  to  keep  that  town  secure  from  ''  the  gambols '" 
of  John  Gilpin,  "  when  he  next  doth  ride  abroad." 

An  article  in  the  London  Law  Times,  on  "Sun- 
day Prosecutions,"  states  that  "a  society  jjrofessing 
for  its  object  the  promotion  of  the  religion  of  char- 
ity, liberty  nnd  love,  is  busy  in  the  east  of  London 
laying  informations  against  crossing-sweepers,  news- 
boys, tobacconists  and  small  tradesmen,  for  infring- 
ing an  old  and  almost  forgotten  statute  of  Charles 
II,  which  imposes  upon  any  person  pursuing  his 
calling  on  Sunday  a  certain  penalty."  The  magis- 
trate inflicts  a  fine  of  a  penny,  and  refuses  costs  to 
the  informers,  who  have  gone  to  tlie  Queen's  Bench. 
The  Times'  writer  is  indignant  at  the  conduct  of 
the  society,  but,  except  in  regard  to  the  swee]Ders,  1 
think  they  are  right.  "  Wherewithal  shall  a  young 
man  cleanse  his  ways,"  if  these  useful  persons  are 
restrained  of  their  brooms  on  Sunday?  But  the 
"  calling  "  of  Sunday  newsboys  is  insufferable,  and 
as  for  the  tobacconists,  "the  smoke  of  their  tor- 
ment ascendeth  up  forever  and  ever." 


THE   LAW   OF   NECESSARIES.  29 


THE  LAW  OF  NECESSARIES. 


Every  husband  is  theoretically  bound  to  support 
his  wife;  that  is,  to  supply  her  with  necessaries  suit- 
able to  her  situation,  and  his  own  circumstances  and 
condition  in  life.     The  same  is  true  as  to  father  and 
child.     And  as  a  corollary,  if  the  husband  or  father 
fail  to  do  this,  third  persons  may  do  it,  and  the  party 
on  whom  the  duty  rests  must  respond.  If  the  wife  live 
with  the  husband,  an  agency  to  contract  for  necessa- 
ries is  presumed  in  her  favor;  and  if  without  him,  his 
duty  still  exists.    An  infant,  away  from  home,  may 
bind  himself  by  his  contract  for  necessaries.  But  as  to 
what  are  and  what  are  not  necessaries,  there  has  been  a 
great  deal  of  discussion,  and  the  line  of  distinction  is 
by  no  means  well  defined.    Lear  was  made  to  say: 
"  Our  basest  beggars 
Are  in  the  poorest  things  superfluous  : 
Allow  not  nature  more  than  nature  needs, 
Man's  life  is  cheap  as  beasts'." 

And  another  poet  says: 

"Man  wants  but  little  here  below, 
Nor  wants  that  little  long." 

But  the  law  takes  a  very  different  view  of  man's 
wants.  The  maxim  of  the  law  on  this  subject 
would  seem  to  be:  Id  necesse  est  quod  necesse  reddi 
potest.  In  view  of  the  disposition  to  enlarge  the 
catalogue  of  necessaries,  it  may  well  be  said  that 
necessity  knows  no  law,  and  is  the  mother  of  inven- 
tion.    The  law  has  long  since  outmarched  the  ffreat 


30  THE    LAW    OF   N'ECESSARIES. 

leading  case  on  the  subject  of  necessaries,  reported 
by  Defoe,  Robinson  Crusoe,  and  the  equally  authori- 
tative case  of  Swiss  Family  RoMnson,  and  the 
scripture  maxim  seems  to  be  the  rule:  "  To  him 
that  hath  shall  be  given,  but  from  him  that  hath 
not  shall  be  taken  away  even  that  which  he  hath." 

The  wife's  necessaries  are  such  as  the  law  deems 
essential  to  her  health  and  comfort:  food,  lodging, 
clothing,  fuel,  washing,  medical  attendance,  etc. 
These  are  to  be  determined,  both  in  amount  and 
kind,  by  the  means  and  social  position  of  the  hus- 
band and  wife.  Not  by  their  real  position,  but  by 
their  apparent  and  assumed  position.  If  the  hus- 
band's position  is  an  imposition,  still  he  is  estopped 
from  setting  up  that  fact.  The  lawful  measure  of 
mercantile  phlebotomy  seems  to  be  what  the  hus- 
band's apparent  venous  system  will  aif  ord.  If  he  has 
passed  in  society  as  a  blood,  it  is  in  vain  for  him  to 
deny  his  fullness  when  called  on  to  pay  his  bills. 
What  says  Goldsmith  —  qiii  nihil  tetigit  quod  non 
ornavit  f 

When  lovely  womau  stoops  to  quarrel, 
And  from  lier  husband  goes  astray, 

What  charm  can  hide  affairs  immoral, 
What  art  can  chase  his  duns  away  ? 

The  ou]_y  chance  to  quell  the  riot, 
And  hide  the  quarrel  from  the  day, 

The  scandal  hush,  and  keep  those  quiet 
Who  ring  his  door-bell,  is  to  pay. 

In  the  new  era  of  perfect  equality  between  the 
sexes,  which  is  dawning,  it  will  be  worth  while  to 
notice  whether  the  law  of  necessaries  will  be  ex- 
tended in  favor  of  husbands  as  against  wives,  and 


THE   LAW   OF   NECESSARIES.  31 

if   SO,  what  articles  it  will  embrace — whether  a 
club,  cigars,  night-key,  etc.,  will  be  among  them. 

But  to  descend  to  particulars.  New  bonnets  to  a 
reasonable  extent  are  doubtless  necessaries,  although 
fashion  does  not  seem  at  present  to  regard  any  cov- 
ering for  the  female  head  as  indispensable.  King 
Lear,  who  is  quite  an  authority  on  the  subject  of 
necessaries,  expresses  himself  sensibly  on  the  par- 
ticular branch  of  mantna-making  and  millinery; 
one  would  almost  imagine  him  a  modern  husband 
and  fatlier  of  girls : 

"  Thou  art  a  lady  ; 
If  only  to  go  warm  were  gorgeous. 
Why,  nature  needs  not  what  thou  gorgeous  wear'st, 
Which  scarcely  keeps  thee  warm.     But,  for  true  need, 
You  heavens,  give  me  that  patience,  patience  I  need  1" 

The  courts  have  been  very  mean  toward  the  ladies 
on  the  subject  of  millinery.  Thus  in  Atkins  v. 
Ciirwood  (7  C.  and  P.  759),  the  court  held  the  hus- 
band, a  poor  barrister,  not  bound  for  sundry  dry 
goods,  to  the  trifling  amount  of  £67,  ordered  by. 
his  wife  as  an  outfit  for  a  watering-place,  whither 
her  husband  had  brutally  forbidden  her  going. 
And  in  pronouncing  the  judgment,  Lord  Abinger 
heartlessly  said:  ''Let  the  wedding  dresses  be 
struck  off."  Then,  too,  in  Lane  v.  Ironmonger  (13 
M.  and  W.  368),  bonnets,  laces,  feathers  and 
ribbons,  to  the  insignificant  amount  of  £5,287  in 
part  of  a  year,  were  fiendishly  declared  extravagant 
by  the  same  cold-blooded  judge.  Verily,  his  sins 
against  the  angelic  sex  are  like  his  name  —  Scarlett. 
Furniture  of  a  house,  for  a  wife  to  whom  the  court 


32  THE   LAW    OF   NECESSARIES. 

had  decreed  £380  a  year  as  alimony,  was  held  neces- 
sary.* It  appearing  to  the  court  that  the  wife  had 
nothing  to  sit  on,  or  eat  from,  they  took  a  chari- 
table view  of  her  necessities.  It  is  much  better,  it 
seems,  to  be  a  special  pleader  than  a  sergeant  at 
law,  for  while  articles  of  jewelry  were  held  super- 
Sous  for  the  wife  of  the  former,  f  the  latter  was 
held  liable  for  silver  fringes  to  a  petticoat  and  side- 
saddle, value  £94.;}:  This  seems  to  be  based  on  the 
principle  of  natural  philosophy,  that  the  higher  one 
rises  thfe  more  he  has  to  *'  come  down."  I  dare  say 
that  unfortunate  sergeant  regretted  the  bridal  that 
rendered  such  a  luxurious  saddle  necessary.  A 
horse  worth  $40,  prescribed  by  a  physician  for  exer- 
cise to  the  invalid  wife  of  a  miller  earning  130  per 
month,  was  held  necessary. §  This  must  have  been 
a  grinding  decision  to  that  husband.  Probably,  in 
his  indignation,  he  tolled  it  to  all  his  customers. 
But  this  was  hardly  more  grinding  than  that  other 
case,  which  compelled  the  husband  to  pay  for  his 
wife's  false  teeth.  |1  Would  not  this  have  been  a 
proper  case  for  the  incidental  application  of  the 
maxim:  Falsus  in  uno,falsus  in  omnihusf  But 
the  doctrine  of  estoppel  was  invoked  in  this  case  — 
it  appearing  that  the  husband  knew  of  the  procural 
of  the  plate,  and  did  not  object,  the  court  said  it 
did  not  lie  in  Ms  mouth  to  repudiate  the  implied 
contract.  In  another  case  the  court  inclined  to 
hold  a  pia.no  necessary,  under  some  circumstances,  1" 

*  Hunt  V.  DeBlaqiiiere,  5  Bing.  550. 

t  Montagu  v.  Benedict,  3  B.  and  C.  631. 

tSkin.  349. 

§  Cornelia  v.  Ellis,  11  Ul.  584. 

II  Gilman  v.  Andraa,  28  Vt.  241. 

t  Parke  v.  Kleeber,  37  Penn.  St.  251. 


THE    LAW   OF   NECESSARIES.  33 

which  is  quite  in  harmony  with  the  tenor  of  author- 
ity. The  law,  with  a  lively  sense  of  its  own  worth 
and  dignity,  considers  necessary  the  fees  paid  by  a 
wife,  whose  husband  had  deserted  her,  for  profes- 
sional advice  as  to  the  proper  mode  of  dealing  with 
tradesmen  who  were  pressing  for  payment.*  What 
advice  was  given  is  not  disclosed,  but  probably  it 
was  not  to  deal  with  them. 

But  there  are  some  things  that  are  not  necessary. 
For  instance,  where  money  was  lent  for  the  purchase 
of  a  passage  ticket  to  enable  the  wife  to  join  her 
husband,  the  court  held  such  joinder  of  parties 
unnecessary,  and  the  money  not  recoverable,  f 

At  common  law  the  husband  is  not  bound  to  fur- 
nish the  file  to  sever  the  marriage  fetters;  counsel 
fees  in  a  suit  for  a  divorce,  whether  the  wife  be 
plaintiff  or  defendant,  are  not  a  necessary.  J  So, 
too,  in  regard  to  the  expense  of  an  indictment  by 
the  wife  for  assault.  §  In  this  case  the  judge  said: 
"It  cannot  be  maintained  that  an  indictment 
against  the  husband  for  assaulting  his  wife  is  a  neces- 
sary." To  hold  otherwise  would  be  like  compelling 
St.  Lawrence's  executors  to  pay  for  the  gridiron  on 
which  he  was  roasted.  I  presume  the  true  princi- 
ple of  this  decision  is  that  the  indictment  would 
be  such  a  luxury  to  the  wife's  feelings  as  to  take  it 
out  of  the  list  of  necessaries.  Although,  as  has 
been  stated,  medical  attendance  is  generally  con- 
sidered a  necessary,  yet  a  quack's  bill  was  thrown 

♦Wilson  V.  Ford,  3  Ex.  63. 

t  Knox  V.  BusheU,  3  C.  B.  (N.  S.)  334. 

t  Coffin  V.  Dunham,  8  Cush.  404. 

§  Qrindall  v.  Godmond,  5  Ad.  and  El.  755. 

5 


34  THE    LAW   OF    NECESSARIES. 

out  in  a  case  where  the  services  were  rendered  with- 
out the  husband's  assent.* 

This  is  an  amusing  case  in  several  particulars. 
The  plaintiff  was  in  the  habit  of  putting  one  Mrs. 
Davis  into  a  mesmeric  sleep,  and  thereupon  she 
became  a  clairvoyant  and  prescribed  the  medicines, 
which  the  plaintiff  furnished.  After  payment  of 
all  expenses  the  proiits  of  this  course  of  business 
were  equally  divided  between  the  plaintiff  and  Mrs. 
Davis.  The  defendant  claimed,  in  addition  to  the 
ordinary  doctrine  of  necessaries,  that  the  plaintiff 
and  Mrs.  Davis  were  partners,  and  that  the  plain- 
tiff alone  could  not  maintain  the  action.  On  the 
main  point  Judge  Fletcher,  a  wise  judge  and  a 
merry,  observed:  "  The  law  does  not  recognize  the 
dreams,  visions  or  revelations  of  a  woman  in  a  mes- 
meric sleep  as  necessaries  for  a  wife,  for  which  the 
husband,  without  his  consent,  can  be  made  to  pay. 
These  are  fancy  articles,  which  those  who  have 
money  of  their  own  to  dispose  of  may  purchase,  if 
they  think  proper,  but  they  are  not  necessaries 
known  to  the  law,  for  which  the  wife  can  pledge 
the  credit  of  the  absent  husband."  On  the  ques- 
tion of  partnership,  the  court,  with  more  literal 
correctness  than  ordinary,  said:  "It  is  not  neces- 
sary that  a  dormant  partner  should  join  with  the 
ostensible  partners  of  a  firm  in  an  action  against 
a  person  who  dealt  only  with  the  ostensible  part- 
ners." 

Another  case  in  which  the  defendant  was  held  not 
responsible  for  "fancy  articles"  is  Freestone  v. 
Butcher  (9  Carr  &,  Payne,  643).     The  plaintiff  was 

*  Wood  V.  KeUy,  8  Gush.  406. 


1 


THE   LAW   OF   NECESSARIES.  35 

a  dealer  in  foreign  birds.  The  defendant  was 
curate  of  Milton.  The  action  was  brought  to 
recover  £757,  balance  of  £959,  for  live  foreign  birds 
supplied  to  the  defendant's  wife,  from  February  to 
December,  1839.  The  defendant  and  his  wife  lived 
together  in  the  rectory  house  at  Milton,  where  the 
defendant  had  caused  a  room  to  be  fitted  up  as  an 
aviary.  Between  six  and  seven  hundred  birds, 
mostly  foreign,  consisting  of  lories,  avadavats,  love 
birds,  bishop  birds,  cardinals  (appropriate  enough 
for  a  curate's  wife),  quakers,  cut-throats  and  mani- 
kins, had  been  delivered  there  by  coach.  In  March, 
1840,  the  defendant  sold  about  two  hundred  of  the 
birds  for  £110,  and  wrote  a  dunning  letter  for  part 
of  the  price.  The  birds  had  been  charged  to  ''  Mrs. 
Dr.  Butcher"  in  the  plaintiff's  books,  and  the 
plaintiff  had  drawn  bills  on  her,  which  she  had 
accepted,  and  which  had  been  paid  out  of  her 
moneys,  she  having  a  separate  income  and  bank 
account.  It  was  held  that  the  circumstances  did 
not  show  any  agency  on  the  part  of  the  wife  to  bind 
the  husband,  and  that  the  birds  were  not  necessa- 
ries. It  came  out  that  the  doctor  had  once  prayed 
an  allowance  from  the  court  of  chancery  for  the 
maintenance  of  his  children,  and  Lord  Abinger 
thought  that  if  he  needed  that,  his  wife  did  not 
need  "avadavats  and  mocking-birds."  On  the 
point  of  agency,  he  put  the  illustration  of  a  wife's 
ordering  "five  puncheons  of  rum  and  five  hogs- 
heads of  sugar,"  as  an  example  of  an  excessive 
order,  but  his  lordship  did  not  have  the  temerity  to 
intimate  that,  if  the  five  puncheons  of  rum  had 
been  reasonablej  the  five  hogsheads  of  sugar  would 


36  THE    LAW    OF   NECESSARIES. 

not  have  been  an  appropriate  concomitant.  But 
such  a  vulgar  ilhistration  was  what  one  might 
expect  from  a  judge  who  would  debar  the  fair  sex 
of  their  just  millinery. 

Money,  the  prime  necessity  of  life,  was  not  re- 
garded at  law  as  necessary,  for  when  lent  to  the 
wife,  Avithout  the  husband's  request,  although  to 
purchase  necessaries,  it  was  held  not  recoverable.* 
But  this  was  corrected  in  equity,  if  the  money  actu- 
ally went  for  necessaries,  the  lender  being,  by  a 
stretch  of  conscience,  put  in  the  place  of  the  trades- 
man, and  allowed  to  recover. f  This  seems  a  very 
unnecessary  circumlocution.  It  is  one  of  the  par- 
ticular beauties  of  that  system  of  jurisprudence,  in 
which  law  is  one  thing  and  justice  another. 

Infancy  is  an  age  of  numerous  demands.  This 
is  true  in  law  as  in  nature.  The  older  a  man  grows 
the  fewer  his  needs.  Thus  Lear  says  : 

"Age  is  unnecessary  ;  \  on  my  knees  I  beg 
That  you'll  vouchsafe  me  o'adinent,  bed  and  food." 

Infancy  is  generally  regarded  as  the  age  of  help- 
lessness ;  but  in  law  an  infant  has  the  power  to 
help  himself  to  his  neighbor's  goods  without  com- 
pensation, unless  they  come  within  the  description 
of  necessaries,  or  the  neighbor  within  that  of  extra- 
ordinarily prudent  men.  An  infant's  necessaries 
are  judged  by  the  same  rules  as  those  of  a  married 
woman,  and  are  the  same,  with  one  addition  —  edu- 
cation. This  is  denied  to  women,  theoretically, 
because  they  are  presumed  to  have  acquired  it  suffi- 
ciently before  marriage  ;  but,  -  virtually,  because  it 

*  stone  V.  McNair,  7  Taunt.  432. 

t  Walker  v.  Simpson,  7  W.  and  S.  83. 

J  That  is,  has  few  wants. 


THE   LAW   OF    NECESSARIES.  37 

is  of  SO  little  use  to  them  after  marriage.  The 
theory  of  the  common  law  is  that  women  do  not 
need  to  know  any  thing,  except  enough  to  get  a 
husband ;  the  husband  ''  knows  it  all.''  Even  the 
infant's  necessary  education  is  limited  ;  it  does  not 
include  a  collegiate  course.*  In  this  case  the  judge 
thought  "  a  good  common-school  education  "  might 
be  *'  strongly  pronounced  "  as  necessary.  Inasmuch 
as  the  free-school  system  prevails  in  Vermont,  I  am 
inclined  to  agree  with  him.  But  there  is  a  case  on 
the  subject  of  education  even  more  illiberal  than 
this,  and  which  leads  us  to  doubt  Lamb's  sound- 
ness when  he  supposed  that  "lawyers  were  chil- 
dren once."  *' The  treats  of  an  undergraduate  at 
college  are  not  necessaries."f  Such  is  the  brief 
and  contemptuous  language  of  the  law  in  a  case  in 
which  it  appeared  that  the  defendant,  when  an 
infant  at  college,  was  under  medical  treatment  for 
measles  and  inflammation  of  the  lungs,  and  was 
ordered  to  take  fruit,  marmalade,  ices  and  soda 
water,  and  that  he  merely  invited  his  infantile  mates 
to  help  him  make  way  with  this  nauseous  physic. 
It  also  appeared  that  his  father  was  in  aflQuent  cir- 
cumstances, and  was  governor  of  Ceylon.  An  intel- 
ligent and  incorruptible  jury,  bearing  in  mind  the 
language  of  the  missionary  hymn  which  they  sang 
when  infants  : 

"  the  spicy  breezes 

Blow  soft  from  Ceylon's  isle. 
And  every  prospect  pleases. 

And  only  man  is  vile,"  — 

were  pleased  to  hold  the  governor's  son  responsible 

*  Middlebury  College  v.  Chandler,  16  Vt.  683. 
t  Brookerr.  Scott,  11  M.  and  W.  67. 


38  THE   LAW   OF   NECESSARIES. 

for  these  sugar-coated  symposia.  But  the  court 
above,  having  no  such  views  of  physic,  held  them 
superfluous.  It  not  appearing  that  the  infant 
guests  were  troubled  with  measles,  or  that  if  they 
were,  it  was  the  province  of  the  governor's  son  to 
cure  them,  the  court  decided  that  they  would  not 
break  out  of  well-settled  rules,  and  so  destroyed  the 
credit  of  that  physician's  prescriptions  with  that 
particular  apothecary.  Of  a  piece  with  this  are  the 
old  decisions  which  frown  on  balls  and  serenades, 
holding  Terpsichore  and  Polymnia  to  be  ornamental 
and  not  useful  maidens.  Perhaps  more  respect 
would  be  paid  to  the  claims  of  these  muses  in  these 
days,  when  a  prima  donna  receives  more  than  a 
chief -justice,  and  the  balancing  of  a  chancellor  is 
less  lucrative  than  that  of  a  ballet  dancer.  A  pair 
of  solitaires  (or  shirt  studs)  worth  £25  are  not,  it 
would  appear,  necessaries  for  any  infant.*  So  in 
regard  to  a  stud  of  horses,  f  Betting  books  are  not 
necessaries. J  Better  use  might  be  made  of  them. 
This  was  an  action  on  account  to  recover  of  the 
defendant,  an  infant  at  the  time  when  the  debt  was 
contracted,  about  £200,  for  ornamental  stationery 
and  jewelry,  including  ear-rings,  cigar  cases  and 
betting  books.  It  was  shown  that  this  precocious 
debtor  had,  in  his  infancy,  contracted  debts  to  the 
amount  of  £40,000,  a  wife  and  a  baby.  In  answer 
to  the  chief -justice's  question  whether  a  wife  were  a 
necessary.  Sergeant  Hawkins  replied,  "not  for  a 
youth  of  twenty,  and  that  if  she  were,  a  baby  was 

*  Ryder  v.  Wombwell,  4  Exch.  32. 

+  Merriam  v.  Cunningham,  11  Cush.  40. 

t  Genner  x\  Walker,  3  Am.  Law  Rev.  590. 


THE   LAW    OF   NECESSARIES.  39 

not."  (The  learned  sergeant  evidently  knows  more 
of  law  than  of  matrimony. )  In  regard  to  the  ear- 
rings, the  chief  observed  :  ''If  they  were  pur- 
chased for  one  young  lady,  and  the  defendant  was 
engaged  to  marry  another,  they  could  not  be  nec- 
essary." This  seems  hard  ;  if  he  did  not  marry  the 
first,  this  Cockney  lover  at  least  wanted  to  give  her 
a  hearing.  Saddles,  harness  and  carriages  may, 
under  some  circumstances,  be  necessaries,  but  ordi- 
narily are  not.*  Presents  from  a  bridegroom  to  his 
bride  may  be  necessaries,  f  So  much  is  allowed  to 
Cupid  and  cupidity.  And  so,  on  such  occasions, 
the  law  tolerates  a  certain  amount  of  smartness,  and 
deems  wedding  garments  necessary  for  an  infant 
about  to  marry.  I  Law  and  gospel  agree  in  this, 
only  the  latter  makes  them  indispensable.  To  mili- 
tary gentlemen  a  similar  concession  is  made,  and 
the  uniform  of  an  officer's  servant  is  adjudged  nec- 
essary ;  but  not  cockades  for  his  whole  company ; 
nor  in  another  case  would  the  court  stand  a  tailor's 
bill  of  £840  for  thirteen  months,  including  19 
coats,  45  waistcoats  and  38  pairs  of  trousers.  ||  But 
to  other  people  dandyism  is  superfluous  —  no  kid 
gloves,  cologne,  silk  cravats  or  walking  canes. § 
An  insurance  contract  is  not  a  necessary,  say  the 
books,  1"  but  this  cannot  apply  to  life  insurances, 
which  are  as  unavoidable  now-a-days  as  taxes.     An 


*  Harrison  v.  Fane,  1  Man.  and  Gr.  550. 

t  Genner  v.  Walker,  3  Am.  Law  Rev.  590. 

t  Sams  V.  Stockton,  14  B.  Monr.  233. 

II  Hands  v.  Slaney,  8  Term,  578;  Burghardt  v.  Angerstein,  6  C.  and 

P.  690. 
§  Leflls  V.  Sugg,  15  Ark.  137. 
t  N.  H,  Ins.  Co.  V.  Noyes,  32  N.  H.  315. 


40  THE    LAW    OF   NECESSARIES. 

infant's  board  is  a  necessary,*  but  not  so  with  tim- 
ber to  repair  his  house,  f  And,  finally,  to  come 
down  to  the  matter  of  greatest  interest  to  our  j)ro- 
fession,  counsel  fees  in  a  suit  about  the  infant's  real 
estate  are  said  not  to  be  necessary.  I  The  Connec- 
ticut courts  hold  that  there  is  no  just  ground  for 
this  rule,  I  and  this  seems  more  consonant  with 
reason,  for  a  suit  is  frequently  the  only  means  by 
which  the  infant  can  be  redressed.  But  the  case 
which  most  astonishes  us  is  one  in  which  the  Eng- 
lish court  recently  decided,  that,  unless  special  cir- 
cumstances are  shown,  tobacco  is  not  a  necessary  to 
any  infant!  How  this  reads,  when  we  are  informed 
that  at  a  recent  dedication  of  a  new  inn  of  court, 
the  lord  high  chancellor,  the  lord  chief-justice,  and 
many  of  the  judges  and  most  eminent  counselors  of 
England,  smoked  after  dinner  in  the  withdrawing 
room,  with  and  out  of  compliment  to  the  Prince  of 
Wales!  Perhaps  this  is  one  of  the  "  special  circum- 
stances "  under  which  the  use  of  tobacco  would  be 
tolerated  in  an  infant. 

The  measure  of  necessaries  is  aifected  by  the  char- 
acter of  the  tribunal  to  which  it  is  left  to  decide. 
As  we  have  seen,  courts  are  always  restricting  the 
verdicts  of  juries  on  this  point.  Twelve  men  have 
so  many  more  wants  than  one  man,  that  they  natu- 
rally take  a  larger  view  of  the  subject.  In  the  soli- 
taire case,  it  was  held  that  the  question  was  one  for 
the  judge  and  not  for  the  jury,  and  accordingly  the 

*  Bradley  v.  Pratt,  23  Vt.  378. 
t  Freeman  v.  Bridger,  4  Jones'  Law,  1. 
t  Phelps  V.  Worcester,  11  N.  H.  51. 
I  Munson  v.  Washband,  31  Conn.  303. 


THE    LAW    OF   NECESSARIES.  41 

verdict  was  set  aside.  Justice  Coleridge,  in  the 
betting-book  case,  remarking  on  tliis,  observed : 
"  It  would  make  the  determination  of  these  cases 
turn  too  much  upon  the  individual  tastes  or  ideas 
of  the  judge.  For  instance,  as  to  smoking,  Sir 
Benjamin  Brodie  vehemently  objected  to  it ;  and 
perhaps  a  judgment  against  cigar  cases  might  result 
from  Baron  Bram well's  disliking  it."  The  better 
doctrine  seems  to  be,  that  it  is  a  question  for  the 
jury,  unless  they  are  too  liberal,  and  then  it  be- 
comes a  question  for  another  jury.  Thus  juries  are 
'* pressed"  into  right  verdicts,  as  Pat  was  "to  turn 
volunteer."  The  admission  of  women  to  the  jury 
box  will  probably  render  pretty  much  every  thing  in 
the  shops  necessary  for  wives  and  infants.  A  bitter 
day  will  that  be  for  the  ghost  of  the  wretched 
Abinger! 
6 


42  WAGERS. 


WAGERS. 


No.  145  of  the  Spectator  is  mainly  devoted  to  a 
complaint  against  wagering  disputants  at  the  coffee 
houses.  It  seems  they  were  mostly  law  students  : 
'*I  will  not  here  repeat  what  Hudibras  says  of  such 
disputants,*  which  is  so  true  that  it  is  almost  pro- 
verbial ;  but  shall  only  acquaint  you  with  a  set  of 
young  fellows  of  the  inns  of  court,  whose  fathers 
have  provided  for  them  so  plentifully  that  they 
need  not  be  very  anxious  to  get  law  into  their  heads 
for  the  service  of  their  country  at  the  bar."  One  of 
these  offensive  and  unlearned,  but  wealthy  young 
gentlemen  (the  correspondent  goes  on  to  complain), 
offered  to  lay  him  ten  guineas  that  he  had  mis- 
quoted a  passage  from  Tacitus,  and  the  correspond- 
ent "was  dumb  for  want  of  ten  guineas."  This 
same  young  gentleman,  he  continues,  "has  five 
guineas  upon  questions  in  geography,  two  that  the 
Isle  of  Wight  is  a  peninsula,  and  three  guineas  to 
one  that  the  world  is  round.  We  have  a  gentleman 
comes  to  our  coffee  house,  who  deals  mightily  in 
antique  scandal ;  my  disputant  has  laid  him  twenty 
pieces  upon  a  point  of  history,  to  wit :  that  Caesar 
never  lay  with  Oato's  sister,  as  is  scandalously  re- 
ported by  some  people.  There  are  several  of  this 
sort  of  fellows  in  town,  who  wager  themselves  into 

*  "I  have  heard  old  cunning  stagers 
Say,  fools  for  arguments  lay  wagers." 


WAGEBS.  43 

statesmen,  historians,  geographers,  mathematicians, 
and  every  other  art,  when  the  persons  with  whom 
they  talk  have  not  wealth  equal  to  their  learning." 
In  No.  521,  a  correspondent  tells  how  he  has  made  a 
fortune  by  wagers  :  "Whenever  I  heard  any  narra- 
tion uttered  with  extraordinary  vehemence,  and 
grounded  upon  considerable  authority,  I  was  always 
ready  to  lay  any  wager  it  was  not  so.  *  *  *  * 
I  had  arrived  at  a  particular  skill  in  warming  a  man  so 
far  in  his  narration  as  to  make  him  throw  in  a  little 
of  the  marvelous,  and  then,  if  he  has  much  fire,  the 
next  degree  is  the  impossible.  Now  this  is  always 
the  time  for  fixing  the  wager." 

Brooke's  coffee  house  in  London  was  the  great 
resort  of  betting  men,  and  the  betting-book  of  that 
establishment,  still  preserved,  records  many  singu- 
lar wagers.  Horace  Walpole  gives  accounts  of  sev- 
eral wagers  in  his  time ;  for  instance,  Lord  Cob- 
ham,  on  a  wager  of  five  guineas  with  Lord  Nugent, 
spit  in  Lord  Hervey's  hat  which  he  was  holding  in 
his  hand ;  "a  man  dropped  dead  at  White's  door, 
and  was  carried  in,  and  the  club  immediately  made 
bets  whether  he  was  dead  or  not,  and  when  they 
were  going  to  bleed  him,  the  wagerersfor  his  death 
interposed  and  said  it  would  affect  the  fairness  of 
the  bet."  One  Blake  "betted  1,500?.,  that  a  man 
could  live  twelve  hours  under  water,  hired  a  despe- 
rate fellow,  sunk  him  in  a  ship  by  way  of  experi- 
ment, and  both  ship  and  man  have  not  appeared 
since."  Doubtless  an  interesting  history  might  be 
written  of  gaming  and  wagers,  but  that  is  not  our 
province.  I  will  only  add  that  the  mania  for  bet- 
ting, prevalent  in  Addison's  and  Walpole's  day,  m- 


44  WAGERS. 

.creased  down  to  a  period  within  the  memory  of  men 
now  living. 

At  common  law  wagers  were  generally  valid,  al- 
though not  favored.  This  doctrine,  through  the 
good  sense  of  judges  and  the  increasing  morality  of 
communities,  has  been  for  a  century  growing  more 
hedged  about  by  restrictions  and  by  statutory  enact- 
ments. At  law,  wagers  are  now  not  recoverable, 
when  the  parties  had  no  interest  in  the  subject  of 
the  bet ;  where  it  tends  to  immorality  or  a  breach  of 
the  peace,  or  the  injury  of  third  persons,  or  to  the 
introduction  of  indecent  evidence  ;  nor  where  it 
tends  to  restrain  the  exercise  of  an  oflBce  or  privi- 
lege, or  is  against  sound  policy,  etc.  It  may  be  in- 
structive to  look  over  some  of  the  older  decisions  on 
the  subject,  and  may  disabuse  some  theologians  and 
moralists  of  the  idea  that  the  world  is  a  great  deal 
worse  than  it  used  to  be,  in  one  respect  at  least. 

One  of  the  earliest  cases  is  Pope  v.  St.  Leger  (Salk. 
344).  before  Lord  Holt,  in  1693.  At  play  at  back- 
gammon, one  of  the  players  stirred  one  of  his  men, 
but  did  not  move  it  from  the  point,  and  the  ques- 
tion was  whether  he  was  bound  to  play  it?  On  this 
a  wager  of  £100  was  laid,  and  the  determination 
referred  to  tlie  groom  porter  ;  and  now  in  an  action, 
the  question  was  on  the  statute  against  gaming, 
whether  this  was  within  the  statute?  And  it  was 
held  this  wager  was  not  prohibited  by  the  statute, 
for  it  was  not  on  the  chance  of  the  play,  but  on  the 
right  of  the  play,  which  is  a  collateral  matter.  This 
case  was  cited  as  authority  in  a  similar  case  a  cen- 
tury later,  but  the  court  seemed  to  think  that  it  had 
outlived  its  usefulness. 


WAGEKS.  45 

Earl  of  March  v.  Pigot  (5  Burr.  2802),  A.  D. 
1771,  is  one  of  the  most  charming  cases  in  the 
books.  It  exhibits  the  filial  affection  of  ingenuous 
British  youth  in  a  truly  admirable  light.  "The 
cause  was  tried  before  Lord  Mansfield.  It  was  a 
contract  made  at  Newmarket.  The  wager  was 
originally  proposed  between  young  Mr.  Pigot,  the 
defendant,  and  young  Mr.  Codrington,  to  run  their 
fathers  (to  use  the  phrase  of  that  place),  each 
against  the  other.  Sir  William  Codrington,  the 
father  of  Mr.  Codrington,  was  then  a  little  turned 
of  fifty;  Mr.  Pigot's  father  was  upward  of  seventy. 
Lord  Ossory  computed  the  chances,  according  to 
the  above-mentioned  ages  of  their  respective  fathers. 
Mr.  Codrington  thought  the  computation  was  made 
too  much  in  his  disfavor.  Whereupon  Lord  March 
agreed  to  stand  in  his  place,  and  reciprocal  notes 
were  accordingly  given  between  the  earl  and  Mr. 
Pigot."  Young  Pigot  agreed  to  pay  March  500 
guineas  if  old  Pigot  died  before  Sir  William  Cod- 
rington, and  March  promised  to  pay  young  Pigot 
1,600  guineas  in  case  old  Codrington  did  not  sur- 
vive old  Pigot.  Xo  mention  was  made  about  the 
old  fellows  then  being  dead  or  alive.  But  the 
joke  was  that  old  Pigot  was  actually  dead;  he  died 
at  Shropshire  at  two  o'clock  in  the  morning  of  the 
same  day  on  which  his  hopeful  son  made  the  hu- 
morous wager  after  dinner.  The  fact,  however, 
was  not  known  to  any  of  the  parties.  Passionate 
grief  rendered  young  Pigot  momentarily  forgetful 
of  his  honor,  and  he  declined  to  pay  the  wager. 
"The  objection  was  that  the  contract  was  void." 
For  immorality  and  indecency,  of  course?     Oh,  no! 


4:6  WAGERS. 

"It  was  without  any  consideration,  for  there  was 
no  possibility  of  the  defendant's  winning,  his  father 
being  then  actually  dead,  and  therefore  he  ought 
not  to  lose."  But  the  bet  was  held  good,  and  no 
animadversion  against  its  character  was  made  by 
the'  great  Lord  Mansfield.  And  so  the  excellent 
young  Pigot,  besides  being  overwhelmed  with  grief 
at  his  sudden  bereavement,  had  to  pay  his  note.  It 
was  sneakingly  mean  and  inconsiderate  in  the  old 
man  to  die  in  this  underhand  way,  and  thus  sub- 
ject his  son,  the  companion  of  young  noblemen,  to 
the  mortification  of  having  bet  against  a  dead  cer- 
tainty. It  was  a  great  joke  on  him,  and  no  doubt 
he  had  to  pay  many  dozens  of  wine  to  his  friends  on 
the  event.  But  it  was  what  you  might  expect  of 
old  Pigot,  for  the  record  does  not  show  that  he  was 
of  noble  blood,  and  so  we  infer  he  was  plebeian,  and 
knew  no  better.  We  cannot  understand  Lord  Ken- 
yon's  remark  in  Good  v.  Elliot,  that  this  wager  was 
"somewhat  indecorous,"  and  are  glad  to  know  that 
this  is  the  only  reprimand  to  be  found  among  the 
English  judges  of  a  transaction  so  admirable. 

In  Jones  v.  Randall  (Cowper,  37),  it  was  decided 
in  1774,  that  an  action  lies  to  recover  money  won 
upon  a  wager,  '^  whether  a  decree  of  the  court  of  chan- 
cery would  be  reversed  or  not  on  an  appeal  to  the 
House  of  Lords,"  unless  the  motive  be  immoral. 
In  arguing  against  the  wager,  Mr.  Dunning  made 
the  following  startling  statements:  "It  is  essential 
to  the  validity  of  a  wager  that  the  event  be  contin- 
gent. But  the  laws  of  this  country  are  clear,  evi- 
dent and  certain  ;  all  the  judges  know  the  laws,  and 
knowing  them,  administer  justice  with  uprightness 


WAGERS.  47 

and  integrity:  The  eyent,  therefore,  was  certain." 
Lord  Mansfield  condescends  to  a  little  grave  fun  in 
his  decision:  "This  contract  is  equal  between  the 
parties;  they  have  each  of  them  equal  knowledge  or 
equal  ignorance;  and  it  is  concerning  an  event 
which,  reasoning  by  the  rules  of  predestination,  is. 
to  be  sure,  so  far  certain  that  it  must  be  as  it  should 
afterward  happen  to  be.  But  it  is  a  future  event 
equally  uncertain  to  the  same  or  of  a  different  opin- 
ion with  the  chancellor;  the  presumption,  if  any,  is 
rather  against  the  person  betting  in  opposition  to 
the  chancellor's  judgment."  ''As  to  the  certainty 
of  the  law  mentioned  by  Mr.  Dunning,  it  would  be 
very  hard  upon  the  profession  if  the  law  was  so  cer- 
tain that  everybody  knew  it;  the  misfortune  is  that 
it  is  so  uncertain  that  it  costs  much  money  to  know 
what  it  is,  even  in  the  last  resort."  His  conclusion 
is  that  the  transaction  "contains  nothing  either 
immoral  or  contrary  to  justice."  He  admits  that, 
if  the  present  wager  had  been  made  with  one  of  the 
judges,  or  with  one  of  the  lords,  it  would  have  been 
a  bribe;  and  that,  "  if  laid  with  the  attorney  or 
counsel  in  the  cause,  it  would  have  been  objectiona- 
ble." 

Judge  Van  Ness,  of  this  State,  once  pronounced 
this  "a  strange  decision,"  and  Mansfield  himself 
seemed  afterward  to  think  so,  for  in  the  argument 
of  the  subsequent  case  of  Da  Costa  v.  Jones,  he  in- 
terrupted counsel  to  say,  "Never  was  a  question 
more  doubtful  how  it  would  be  decided,  till  it  was 
actually  determined." 

It  was  held  in  a  more  modern  case,  Evans  v.  Jones 
(5  M.  &  W.  77),  that  a  wager  as  to  the  conviction  or 


48  WAGERS. 

acquittal  of  a  prisoner  on  a  criminal  charge  is  void. 
One  of  the  judges  observes:  "It  is  too  late  now  to 
say  that  no  wager  can  be  enforced  by  law,  but  I 
think  it  would  have  been  better  if  they  had  origin- 
ally been  left  to  the  decision  of  the  jockey  club."  It 
is  never  too  late  to  mend,  and  it  would  be  hard  in- 
deed if  the  bending  of  the  legal  twig  made  an  inflexi- 
ble tree. 

The  celebrated  case  of  Da  Costa  v.  Jones  (Cowper, 
729)  was  an  action  on  a  wager  between  the  plaint- 
iff and  the  defendant  upon  the  sex  of  Monsieur  Le 
Chevalier  D'Eon.  The  subject  of  the  wager  was  a 
man  of  singularly  effeminate  appearance,  who  was 
connected  with  the  French  embassy  at  London,  in 
1763.  He  had  served  with  credit  as  a  soldier.  The 
question  of  his  sex  was  deemed  worthy  of  tbe  atten- 
tion of  the  French  parliament,  which  decreed  him 
to  be  a  woman,  and  to  wear  feminine  apparel,  which 
he  did  for  many  years  in  Paris  and  London.  Horace 
Walpole  says  of  him:  "  She  looked  more  feminine, 
as  I  remember  her,  in  regimentals,  than  she  does 
now.  She  is,  at  best,  a  hen-dragoon  or  a  herculean 
hostess."  And  again,  "Lord  Mount-Edgcumbe 
said  excellently,  that  'Mademoiselle  D'Eon  is  her 
own  widow.'"  Good  Hannah  More  dined  with 
him,  and  wrote:  "She  is  extremely  entertaining, 
has  universal  information,  wit,  vivacity  and  gayety. 
Something  too  much  of  the  latter  (I  have  heard) 
when  she  has  taken  a  bottle  or  two  of  Burgundy; 
but  this  being  a  very  sober  party,  she  was  kept  en- 
tirely within  the  limits  of  decorum."  The  agree- 
ment in  the  above  case  was  that  the  defendant,  in 
consideration   that   the  plaintiff   would   then    and 


WAGERS.  49 

there  pay  him  seventy-five  guineas,  should  pay  the 
plaintiff  three  hundred  pounds  in  case  the  cheva- 
lier should  at  any  time  prove  to  be  a  female.  The 
case  was  tried  before  Lord  Mansfield,  in  1777,  and 
the  plaintiff  had  a  verdict,  Avhich  must  have  been 
founded  on  evidence  of  the  chevalier's  femininity. 
On  motion  in  arrest  Lord  Mansfield  said  the  case 
had  "made  a  great  noise  all  over  Europe  ; "  that 
he  was  "  sorry  that  the  nature  of  the  action  had  not 
been  more  fully  considered ; "  and  that  the  wit- 
nesses "  had  not  been  told  they  might  refuse  to  give 
evidence  if  they  pleased:"  He  continues:  "That 
two  men,  by  laying  a  wager  concerning  a  third  per- 
son, might  compel  his  physicians,  relations  and  ser- 
vants to  disclose  what  they  knew  relative  to  the 
subject-matter  of  the  Avager  would  have  been  an 
alarming  proi^osition  ; "  and  quite  appropriately  he 
adds:  "  the  hai^e  stating  of  it  would  have  startled." 
He  then  supposes  the  case  of  a  "  wager  upon  a  mark 
or  defect  in  a  woman's  body.  Will  the  court  say 
they  would  suffer  her  chambermaid  to  be  called,  to 
give  evidence  npon  such  a  question?"  He  consid- 
erately remarks,  "  a  wager  Avhether  the  next  child 
shall  be  a  boy  or  a  girl  hurts  no  one."  His  con- 
clusions are  that  this  action  will  not  lie  because  it 
tends  to  indecent  evidence,  and  to  disturb  the  peace 
of  the  individual  and  of  society. 

In  Atherfold  v.  Beard  (2  T.  R.  610),  A.  D.  1788, 
it  was  held  that  a  wager  respecting  the  future 
amount  of  any  branch  of  the  public  revenne  is  ille- 
gal, because  it  leads  to  an  improper  discussion,  and 
is  contrary  to  sound  policy.  The  wager  was  five 
guineas  whether  the  Canterbury  collection  of  the 
7 


50  WAGERS. 

duty  on  hops  for  the  year  1786  would  amount  to 
more  than  the  Canterbury  collection  for  the  preced- 
ing year.  It  was  argued  in  favor  of  the  wager  that 
it  did  not  appear  that  the  parties  were  hop-growers, 
and  consequently  neither  could  be  instrumental  in 
diminishing  the  revenue  on  account  of  any  bias 
arising  from  the  wager;  nor  could  the  wager  have 
deterred  either  party  from  growing  hops,  for  the 
hops  for  that  year  were  planted  and  in  blossom. 
The  argument  that  needed  this  answer,  although 
made  by  Erskine  and  Garrow,  seems  queer  logic,  for 
if  one  had  an  interest  in  diminishing  the  revenue, 
the  other  had  an  interest  in  increasing  it,  and  so 
the  matter  was  equal.  The  court  put  their  decision 
on  the  ground  that  it  was  an  "impertinent  wager," 
and  tended  to  ''expose  to  all  the  world  the  amount 
of  the  public  revenue ! "  Buller  put  it  on  the  ground 
that  it  was  an  "idle  wager,"  and  that  no  "wager 
between  two  joersons  not  interested  in  the  subject- 
matter  is  legal." 

Good  V.  Elliot  (3  T.  E.  693),  A.  D.  1790,  was  a 
case  on  a  wager,  whether  Susannah  Tye  had  or  had 
not,  before  a  certain  day,  bought  a  wagon.  A  ma- 
jority of  the  court  held  the  wager  binding.  Buller 
dissented,  and  observed:  "If  the  bet  is  founded  on 
the  private  transactions,  or  the  interest  of  a  third 
person,  I  think  it  is  void.  *  *  *  If  it  concern 
the  person  of  another,  no  action  can  be  maintained 
upon  it.  And  therefore  I  am  of  opinion  that  a  bet 
on  a  lady's  age,  or  whether  she  has  a  mole  on  her 
face,  is  void.  No  third  person  has  a  right  to  make 
it  a  subject  of  discussion  in  a  court  of  justice, 
whether  she  passes  herself  in  the  world  as  being 


WAGERS.  51 

more  in  the  bloom  of  youth  than  she  really  is,  or 
whether  what  is  apparent  to  every  one  who  sees  her 
is  a  mole  or  a  wart;  and  yet  these  are  circumstances 
which  cannot,  in  a  court  of  law,  be  stated  as  an  in- 
jury; for  if  a  man  say  that  a  young  woman  who 
passes  for  23  years  of  age  is  33,  or  that  she  has  a 
Avart  in  her  face  (which  is  considered  a  nasty  thing), 
no  action  will  lie  for  it.  I  will  put  one  case  more, 
which,  if  it  do  not  appear  too  ludicrous,  perhaps 
may  be  found  to  bear  upon  the  present  question. 
Suppose  a  bet  were  made  whether  a  young  lady 
squinted  with  her  right  eye  or  her  left  eye;  shall  it 
be  the  subject  of  sober  inquiry  in  a  court  of  justice 
how  the  organs  of  her  eyes  are  formed,  and  which 
of  them  it  is  that  looks  directly  to  the  object  before 
her?  Shall  the  parties  in  the  action  be  permitted 
to  say  the  inquiry  is  no  injury  to  her,  for  everybody 
sees  that  she  squints,  and  it  makes  no  difference 
to  her  whether  it  be  with  one  eye  or  the  other?  No. 
The  answer  is,  you,  the  plaintiff  and  defendant, 
have  no  right,  by  an  idle,  wanton  bet  of  yours,  to 
bring  her  person,  or  even  her  name,  in  question." 
Who  would  suppose  that  this  was  the  judge  who 
held  that  a  husband  had  a  right  to  chastise  his 
wife  with  a  stick  not  bigger  round  than  his  thumb? 
The  gallant  judge,  however,  seems,  satirically,  as 
careful  of  Newmarket  contracts  as  the  court  in 
March  v.  Pigot :  "  If  a  person  of  high  rank  were  to 
Bell  a  horse  at  Newmarket  to  a  person  just  21  years 
of  age,  for  £5,000,  whatever  the  laws  of  Newmarket 
may  justify,  it  would  not  be  a  pleasant  thing  to 
have  it  discussed  in  a  court  of  justice,  whether  the 
horse  were  worth  more  than  £25." 


52  WAGERS. 

lnRohso7i  V.  Hall  (Peake,  K  P.  127),  A.  D.  1792, 
there  was  a  wager  that  the  plaintiff  "did  not  find 
two  geldings  to  trot  32  miles  in  two  consecutive 
hours."  The  feat  was  accomplished  by  trotting  one 
horse  twelve  miles,  another  four  miles,  and  then  the 
first  horse  twelve  miles  more.  (How  this  made 
thirty-two  miles  is  not  explained.)  It  was  insisted 
for  the  defendant  that  the  meaning  of  the  agree- 
ment was  that  each  horse  should  trot  sixteen  miles, 
but  Lord  Kenyon  thought  not.  He  suited  the 
plaintiff  on  this  point  but  nonsuited  him  on  an- 
other. 

In  1808,  in  Hartley  v.  Rice  (10  East,  20),  it  was  held 
that  a  wager,  whereby,  in  consideration  that  the 
plaintiff  promised  to  pay  the  defendant  fifty  guineas 
in  case  he, the  plaintiff,  should  be  married  within  six 
years,  the  defendant  promised  to  pay  the  plaintiff 
the  like  sum  if  the  plaintiff  should  not  be  married 
within  that  time,  was  void  as  being  in  restraint  of 
marriage,  no  circumstances  being  shown  to  render 
such  restraint  prudent  and  proper  in  the  particular 
instance.  The  court,  consisting  of  Ellenborough, 
Grose,  Le  Blanc  and  Bayley,  were  a  marrying  court, 
and  would  not  listen  to  a  man  contracting  to  keep 
himself  out  of  bliss  for  so  short  a  period  even  as  six 
years. 

In  Hussey  v.  Crichitt  (3  Camp.  168),  A.  D.  1811, 
it  was  held  that  an  action  may  be  maintained  upon 
a  wager  of  a  rump  and  dozen  whether  the  defend- 
ant be  older  than  the  plaintiff.  The  parties  were 
dining  in  Furnival's  Inn  Hall.  The  only  doubt 
among  the  court  was  that  entertained  by  Sir  James 
Mansfield,  whether  he  judicially  knew  the  meaning 


AVAGERS.  53 

of  a  rump  and  dozen.  The  dinner  cost  £18.  But 
it  seems  that  evidence  was  resorted  to  for  the  pur- 
pose of  explaining  the  meaning  of  the  cabalistic 
phrase.  And  in  Bulling  v.  Frost  (1  Esp.  Cas.  236), 
Lord  Kenyon  held  an  action  maintainable  to  re- 
cover money  lost  at  the  game  of  all  fours,  the  rules 
of  which  must  have  been  proved  and  explained  on 
the  trial. 

In  Gilbert  v.  SyTces  (16  East,  150),  in  1812,  it  was 
held  that  a  wager,  by  which  the  defendant  received 
from  the  plaintiff  one  hundred  guineas  on  the  31st 
of  May,  1802,  in  consideration  of  paying  the  plaint- 
iff a  guinea  a  day  as  long  as  Napoleon  Bonaparte, 
then  first  consul  of  the  French  republic,  should 
live;  which  bet  arose  out  of  a  conversation  upon  the 
probability  of  his  coming  to  a  violent  death  by 
assassination  or  otherwise,  is  void,  on  the  grounds 
of  immorality  and  impolicy.  It  appeared  that  the 
defendant  paid  his  guinea  daily  from  May  31st, 
1802,  to  December  25th,  1804,  but  no  longer.  He 
evidently  thought  Christmas  a  good  day  to  stop  on. 
The  plaintiff  claimed  £2,296.  It  was  shown  that 
the  bet  arose  after  dinner  at  the  defendant's  table. 
and  evidence  was  adduced  to  show  that  it  was  not 
intended  seriously,  but  that,  although  the  plaintiff 
offered  to  cancel  it,  the  defendant  stuck  to  it  out  of 
a  sense  of  houor.  The  jury  found  for  the  defend- 
ant. It  was  argued  that  the  bet  was  impolitic,  as 
giving  the  plaintiff  an  interest  in  the  life  of  a  for- 
eign sovereign,  who  had  become  an  enemy.  Lord 
Ellenborough  gave  heed  to  this  suggestion:  "Then 
is  not  the  interest  created  by  this  wager  likely  to 
induce  more  proximately  mischievous  consequences 


54  WAGERS. 

to  the  public  than  the  other  instances  which  have 
been  considered  as  having  that  tendency?  The 
mischief  is  more  to  be  regarded  at  a  time  when  it 
has  been  announced  by  that  enemy,  in  the  preser- 
vation of  whose  life  the  plaintiff  has  thus  created 
an  interest  to  himself,  year  after  year,  that  there  ia 
a  large  force  collecting  on  the  opposite  coasts  ready 
to  be  poured  into  this  kingdom,  and  every  Sundny 
the  minds  of  the  subjects  are  kept  alive  to  the  dan- 
ger; and  shall  it  be  allowed  to  a  subject  to  say,  that 
in  case  of  such  an  event  happening  as  an  invasion 
of  the  kingdom  by  the  French  ruler,  the  loss  of  365 
guineas  a  year  depending  on  that  life,  would  have 
no  operation  on  his  mind  when  opposed  to  the  call 
of  active  duty  toward  his  country;  that  the  moral 
duties  which  bind  man  to  man  are  in  no  hazard  of 
being  neglected,  when  put  in  competition  with  in- 
dividual interest;  that  it  is  not  an  object  to  us  to 
prevent  even  the  suspicion,  and  to  repel  from  us  the 
malignant  imputation  that  we  countenance  in  any 
manner  the  idea  of  assassinating  an  enemy,  and 
thereby  guard  against  any  attempt  on  his  part  to 
retaliate  upon  a  life  most  dear  to  us  all."  Truly, 
this  was  a  most  immoral  wager  —  binding  the 
plaintiff  not  to  kill  Napoleon,  when  it  became  his 
duty  to  do  so,  and  binding  the  defendant  to  take 
his  life  in  order  to  end  his  obligation  to  pay!  But 
the  passage  quoted  from  Lord  Ellenborough's  opin- 
ion affords  striking  judicial  evidence  of  the  panic 
which  Napoleon's  fictitious  demonstrations  of  inva- 
sion had  created  in  the  kingdom  of  Great  Britain. 
If  the  little  corporal  had  really  set  foot  on  British 
soil,  he  would  have  had  nothing  to  fear  from  his 


"WAGERS.  55 

lordship  individually,  for  he  was  turned  out  of  the 
awkward  squad  of  the  Lincoln  Inn  soldiery  on 
account  of  incorrigible  unfitness  for  military  affairs. 
Napoleon  again  came  in  court  in  Phillips  v.  Ives 
(1  Eawle,  36),  A.  D.  1828,  in  which  it  was  held  that 
a  wager,  whether  or  not  Napoleon  Bonaparte  would, 
within  a  specified  time,  be  removed  or  escape  from 
St.  Helena,  was  illegal  and  void.  In  the  prevailing 
opinion  the  judge  said:  "  I  hold  that  no  bet  of  any 
kind,  about  any  human  being,  is  recoverable  in  a 
court  of  justice."  Two  judges,  however,  dissented, 
holding  that  the  subject  was  too  far  removed  to  be 
affected  by  the  wager,  either  mentally  or  physically. 
Bland  v.  Collett  (4  Camp.  187),  A.  D.  1815,  involves 
a  Newmarket  episode.  The  plaintiff,  defendant, 
and  a  person  of  the  name  of  Porter,  having  been  at 
the  Newmarket  races,  in  October,  the  plaintiff  one 
evening  boasted  of  being  acquainted  with  Lord 
Kensington,  and  having  conversed  with  him  on  the 
turf  at  a  former  Newmarket  meeting.  Porter 
asserted  that  the  plaintiff  had  never  spoken  to 
Lord  Kensington  in  his  life.  A  bet  was  talked  of 
on  the  subject,  but  none  was  then  laid.  Next 
morning  the  parties  againt  met,  when  Porter  asked: 
"  What  will  you  now  lay  that  you  conversed  with 
Lord  Kensington?"  The  plaintiff  answered  80 
guineas  to  10."  The  money  was  accordingly  de- 
posited in  the  hands  of  the  defendant,  as  a  stake- 
holder. Upon  which  Porter  exclaimed:  "Now  I 
have  you;  I  have  made  inquiries,  and  the  person 
you  conversed  with  was  Lord  Kingston,  not  Lord 
Kensington."  The  plaintiff  owned  his  mistake, 
but  said  he  had  been  imposed  on,  and  gave  notice 


56  WAGEKS. 

to  the  defendant  not  to  pay  over  his  money.  Held, 
a  valid  wager. 

In  Ditchburn  v.  Goldsmith  (4  Camp.  152),  1815,  a 
wager  of  £200  to  £100  that  Joanna  Southcote  would 
be  delivered  of  a  male  child  before  a  certain  day, 
was  held  void.  Joanna,  it  will  be  remembered, 
was  an  impostor  who  claimed  that  she  was  to  be- 
come the  mother  of  a  new  Messiah.  It  was  strenu- 
ously urged  by  counsel,  that  the  wager  was  unob- 
jectionable on  the  score  of  injury  to  her  feelings, 
she  having  announced  tlrat  she  was  pregnant  of  a 
male  child,  although  she  pretended  still  to  be  a 
virgin;  and  besides  she  was  dead  at  the  time  of  the 
trial.  But  as  soon  as  it  came  out  in  evidence  that 
she  was  unmarried,  Chief  Justice  Gibbs  stopped 
the  trial  and  dismissed  the  cause. 

Campbell  v.  Richardson  (10  Johns.)  406,  1813, 
was  a  case  where  the  defendant  had  set  up  a  mark 
to  be  shot  at  for  25  cents  a  shot,  and  offered  the 
plaintiff,  if  he  hit  it,  to  pay  him  820.  The  plain- 
tiff hit  the  mark,  and  it  was  held  that  this 
action  to  recover  the  $20  was  not  amiss.  This  was, 
as  the  court  said,  an  innocent  wager,  certainly,  if 
there  ever  was  one.  No  doubt  Lord  Ellenborough 
would  have  sustained  it,  on  the  ground  that  it  was 
a  praiseworthy  method  of  training  up  marksmen  to 
resist  the  incursion  of  Napoleon,  and  Lord  Eldon, 
I  dare  say,  would  have  held  the  wager  innocent, 
unbiased  by  any  feeling  of  envy,  although  he  was 
a  notoriously  bad  shot  himself,  and  was  never  known 
to  kill  any  thing  but  time,  as  his  brother.  Lord 
Stowell,  said. 

Fisher  v.  Waltham  (1  Da  v.  &  M.)  was  a  case  of  a 


WAGEKS.  57 

wager  by  the  defendant  that  he  would  not  sustain 
his  examination  as  an  attorney  and  be  admitted  to 
practice.  Although  he  passed,  yet  this  was  held 
void  as  a  "bubble  bet,"  that  is,  one  which  the  de- 
fendant had  the  power  to  win  at  his  pleasure.  This 
may  be  good  law  in  England,  but  no  one  could  be 
rejected  here  if  he  cried  ever  so  hard. 

Although  courts  are  sometimes  in  doubt  upon 
wagers  as  to  others,  they  never  have  had  any  doubts 
when  the  wager  concerned  themselves.  They  are 
as  sensitive  as  Judge  Buller's  lady  with  the  mole 
on  her  face,  as  to  any  inquiry  by  way  of  wager  into 
the  extent  of  their  knowledge.  So  Lord  Ellen- 
borough,  in  1810,  in  Henhin  v.  Guerss  (13  East, 
217),  an  action  on  a  wager  as  to  the  practice  of  the 
court  upon  a  given  point,  held  that  he  would  not 
hold  any  thing,  not  even  hold  still  to  hear  the 
case.  He  was  not  bound  to  "  answer  impertinent 
questions."  It  was  an  ''extremely  impudent 
attempt  to  compel  the  court  to  give  an  opinion 
upon  an  abstract  question  of  law,  not  arising  out 
of  pre-existing  circumstances  in  which  the  jaarties 
had  an  interest."  No  doubt  the  parties  thought 
themselves  lucky  to  escajDc  from  his  paws  without 
being  transported  for  contempt. 

Even  more  violent  on  another  question  was  Lord 
Loughborough,  in  Brown  v.  LeesoJi  (2  H.  Bl.  43),  in 
1797.  Knowing  his  lordship  to  be  a  constant  fre- 
quenter of  Brooke's  and  White's,  and  intimately 
acquainted  with  the  mysteries  of  gambling,  the 
parties  were  doubtless  not  prepared  for  the  follow- 
ing roar,  but  probably  depended  on  an  exercise  of 
the  knowledge  intimated  in  his  lordship's  last  sen- 


58  WAGERS. 

tence;  "Do  not  swear  the  jury  in  this  case,  but  let 
it  be  struck  out  of  the  paper.  I  will  not  try  it. 
The  administration  of  justice  is  insulted  by  the 
proposal  that  I  should  try  it.  To  my  astonishment, 
I  iind  that  the  action  is  brought  on  a  wager  as  to 
the  mode  of  playing  an  illegal,  disreputable  and 
mischievous  game  called  'hazard;'  whether,  allow- 
ing seven  to  be  the  main,  and  eleven  to  be  a  nick 
to  seven,  there  are  more  ways  than  six  of  nicking 
seven  on  the  dice?  Courts  of  justice  are  consti- 
tuted to  try  rights  and  redress  injuries,  not  to  solve 
the  proljlems  of  the  gamesters.  The  gentlemen  of 
the  jury  and  I  may  have  heard  of  '  hazard '  as  a 
mode  of  dicing  by  which  sharpers  live,  and  young 
men  of  family  and  fortune  are  ruined;  but  what 
do  any  of  us  know  of  'seVen  being  the  main,'  or 
'eleven  being  the  nick  to  seven?'  Do  we  come 
here  to  be  instructed  in  this  lore,  and  are  the 
unusual  crowds  (drawn  hither,  I  suppose,  by  the 
novelty  of  the  expected  entertainment)  to  take  a 
lesson  with  us  in  these  unholy  mysteries,  which 
they  are  to  practice  in  the  evening  in  the  low  gam- 
ing houses  in  St.  James  street,  pithily  called  by  a 
name  which  should  inspire  a  salutary  terror  of 
entering  them?  Again,  I  say,  let  the  cause  be 
struck  out  of  the  paper.  Move  the  court,  if  you 
please,  that  it  may  be  restored,  and  if  my  brethern 
think  that  I  do  wrong  in  the  course  that  I  now 
take.  I  hope  that  one  of  them  will  officiate  for  me 
here,  and  save  me  from  the  degradation  of  trying 
whether  there  be  more  than  six  ways  of  nicking 
seven  on  the  dice,  allowing  seven  to  be  the  main 
and  eleven  to  be  a  nick  to  seven ' —  a  question,  after 


WAGERS.  59 

all,  admitting  of  no  doubt,  and  cajtable  of  mathe- 
matical  demonstration."  The  court,  on  review,  sus- 
tained this  decision.  They  could  hardly  do  other- 
wise, for  Alexander  was  the  only  one  of  them  who 
knew  any  thing  of  the  subject,  and.  he,  as  we  have 
seen,  "would  not  tell."  Counsel,  in  arguing  this 
case,  cited  Fope  v.  St.  Leger,  but  it  received  no 
credit. 


60  THE   ANIMAL    KINGDOM    IN    COURT. 


THE  ANIMAL  KINGDOM  IN  COURT. 


One  of  man's  proudest  boasts  is  his  assumed 
superiority  to,  and  sovereignty  over,  the  brute  crea- 
tion. In  a  state  of  innocence,  we  are  informed  by 
a  reliable  authority,  he  had  dominion  given  to  him 
over  the  beasts.  His  superiority  was  early  lost,  in 
a  great  degree  —  perhaps  as  one  of  the  sad  conse- 
quences of  the  fall.  In  a  state  of  nature,  even  since 
the  fall,  his  sovereignty  has  been  occasionally,  in 
some  measure,  restored;  probably  as  a  reward  for 
his  desertion  of  the  impurities  of  the  world  and  of 
society.  Thus,  in  Cowper  —  a  recognized  legal 
authority  — Alexander  Selkirk,  cast  away  on  a  desert 
island,  says  to  himself: 

"  I'm  monarch  of  all  I  survey. 

My  right  there  is  none  to  dispute. 
From  the  center  all  round  to  the  sea, 
I'm  lord  of  the  fowl  and  the  brute." 

This  was  not  a  mere  empty  boast,  for  he  says 
later,  in  speaking  of  the  docility  with  which  the 
animal  race  yielded  to  his  authority: 

"  Their  tameness  is  shocking  to  me." 

How  different  in  a  state  of  so-called  civilization? 
We  pay  taxes  on  our  dogs,  and  they  give  us  hydro- 
phobia; we  feed  our  horses  dainty  oats,  and  install 
them  in  luxurious  stables,  and  they  kick  us  or  run 
away  with  us;  we  transport  the  bee  from  the  rough 


THE    ANIMAL    KINGDOM    IN    COUKT.  61 

forest  tree  to  a  neat  and  comfortable  hive,  and  he, 
not  caring  a  straw,  stings  us;  we  pay  several  thou- 
sand dollars  for  a  fine  ram  and  he  butts  us,  or  for  a 
blooded  bull,  and  he  lifts  us,  unwilling,  over  the 
fence,  when  we  would  go  our  own  gait.  How  feel- 
ingly does  the  philosopher  Launce  describe  what  he 
undergoes  for  his  ungrateful  cur:  "I  have  sat  in 
the  stocks  for  puddings  he  hath  stolen,  otherwise 
he  had  been  executed;  I  have  stood  on  the  pillory 
for  geese  he  hath  killed,  otherwise  he  ,had  suffered 
for't." 

But  our  damages  are  not  confined  to  our  own 
persons.  We  are  forced  to  pay  for  the  hurt  that 
animals  cause  others.  Exactly  to  what  extent 
mankind  are  legally  responsible  to  each  other  for 
the  pranks  of  the  animal  kingdom,  has  a  good  deal 
puzzled  the  courts  to  determine,  but  the  rules 
arrived  at  have  been  well  summed  up  by  Judge 
Selden,  in  Earl  v.  Van  Alstyne,  the  quotation  of 
which,  as  possibly  a  piece  of  superfluous  serious- 
ness, I  now  apologize  for,  before  proceeding  to  the 
normal  levity  of  my  subject.  The  learned  judge 
says  the  gist  of  the  decision  is:  '"'1.  That  one  who 
keeps  or  owns  an  animal  of  any  kind,  becomes  liable 
for  any  injury  the  animal  may  do,  only  on  the  ground 
of  some  actual  or  presumed  neglect  on  his  part. 
3.  That  it  is  essential  to  the  proof  of  neglect,  and 
sufficient  evidence  thereof,  that  the  owner  be  shown 
to  have  had  notice  of  the  propensity  of  the  animal 
to  do  mischief.  3.  That  proof  that  the  animal  is 
of  a  savage  and  ferocious  nature  is  equivalent  to 
proof  of  express  notice.  In  such  cases  notice  is 
presumed." 


62  THE   ANIMAL    KINGDOM    IN    COURT. 

As  we  have  seen  in  "  Law  and  Lawyers  in  Litera- 
ture," dogs  have  been  a  prominent  subject  of  mock- 
trials  among  authors.  Aristophanes  and  Eacine 
have  condescended  to  them.  And  in  real  life  they 
have  acted  an  important  part  as  the  cause  of  con- 
siderable litigation.  "  Dogs  "  forms  a  distinct  head 
in  the  digest.  Grave  judges  have  said  and  decided 
kind  things  about  them. 

Eldon's  dog  Pincher  is  famous,  and  his  master 
made  a  testamentary  provision  for  him.  He  was 
introduced  into  several  portraits  of  his  lordship, 
who  said :  "  Poor  fellow,  he  has  a  right  to  be  painted 
with  me;  for  when  my  man  Smith  took  him  the 
other  day  to  a  law  bookseller's,  where  there  were 
several  lawyers  assembled,  they  all  received  him  with 
great  respect,  and  the  master  of  the  shop  exclaimed : 
'  How  very  like  he  is  to  old  Eldon,  particularly  when 
he  wore  a  wig; '  but,  indeed,  many  people  say  he  is 
the  better  looking  chap  of  the  two." 

Erskine  had  a  favorite  dog  that  always  attended 
him  in  consultation,  and  apparently  gave  more  heed 
than  his  master.  It  is  true  that  on  this  side  of  the 
Atlantic  it  has  been  mooted  whether  dogs  are  prop- 
erty; but  in  Great  Britain,  as  I  infer  from  a  cur- 
sory view,  they  have  always  been  held  capable  of 
being  stolen  as  well  as  of  stealing.  What  has  made 
the  English  judges  so  tender  toward  dogs  I  cannot 
guess,  unless  it  may  be  that  they  themselves  so 
strongly  resemble  poodles,  when  they  get  their  wigs 
on.  They  have  held  that  to  justify  the  killing  of 
a  dog  for  pursuing  fowl,  he  must  be  caught  and 
slain  in  flagrante  delicto.  Dogs  are  protected,  too, 
aorainst   deceit   and    undue   izifluence.      Thus    in 


THE    AlSriMAL    KINGDOM    IN    COURT,  63 

Toionsend  v.  Wathen  (9  East,  277),  the  defendant 
was  possessed  of  a  certain  wood,  situate  near  the 
premises  of  the  plaintiff,  and  wrongfully  intending, 
etc.,  to  destroy  the  plaintiff's  dogs,  had  placed 
traps  in  and  about  the  wood,  and  near  to  certain 
public  highways  and  footways,  and  near  to  the 
grounds  of  the  plaintiff,  and  had  placed  pieces  of 
flesh  and  stroug-smelling  things  in  and  about  the 
said  traps,  and  had  procured  to  be  trailed  around 
about  the  traps  similar  attractive  scents,  and  had 
continued  the  same,  etc. ;  the  plaintiff's  dogs  were 
thus  often  caught,  and  there  was  evidence  that  the 
defendant  had  offered  his  servant  Is.  for  every  dog 
killed.  It  was  said  "Per  Cur." — I  don't  under- 
stand that  this  really  means  "by  a  dog,"  although 
it  would  seem  not  unreasonable  —  that  this  could 
not  be  tolerated.  In  another  action,  of  damages 
for  stabbing  a  dog,  which  occurred  in  a  dog  tussle, 
the  plea  was  held  bad  on  demurrer,  because  it  did 
not  allege  that  the  stabbing  was  necessary  to  part 
the  dogs.  And  again,  where  the  plea  attempted  to 
justify  the  killing  of  a  dog  because  he  was  running 
after  hares,  it  was  held  bad,  because  it  did  not  aver 
that  the  dog  belonged  to  an  unqualified  person, 
etc.  Vere  v.  Lord  Cawder  (11  East,  568).  Chief 
Justice  Holt  seems  to  be  an  exception  to  the  rest 
of  the  English  judges  on  this  point,  for  he  held,  in 
SmitliY.  Pelah  (3  Str.  1264),  that  if  one  trod  on  a 
dog's  toes,  and  the  dog  resented  it,  an  action  would 
lie  against  the  owner;  but  he  put  it  on  the  ground 
that  the  dog  had  once  bit  a  man,  and  the  owner 
had  neglected  his  duty  of  hanging  the  offender. 
Two  things  are  inferable  from  this :  first,  that  Chief 


64  THE   ANIMAL    KINGDOM    IN    COUET, 

Justice  Holt  was  not  troubled  with  corns;  and 
second,  that  some  dog  had,  at  some  time,  "got  a 
holt  of  him,"  as  the  countrymen  phrase  it.  We 
know  that  Lord  Camden  was  very  tender  of  inflict- 
ing the  punishment  of  the  stocks,  because  he  once 
sat  in  them  himself,  by  way  of  experiment,  and  his 
friend  forgot  him  and  left  him  locked  in  for  ten 
hours.  So,  too,  Judge  Holt,  in  his  youth,  which 
was  a  wild  one,  may  have  had  a  dose  of  dog's  tooth, 
which  left  an  equally  deep-seated  impression. 

On  the  other  hand,  in  Stansfeld  v.  Boiling  (22 
L.  T.  Rep.  [N.  S.]  799,  Ex.),  it  was  held  where  a 
shopkeeper  had  spread  poison  on  bread  and  cheese, 
and  placed  them  under  his  counter,  for  the  purpose 
of  destroying  rats,  and  the  plaintiff's  dog  came  be- 
hind the  counter  and  ate  the  poison,  and  died  in 
consequence,  that  the  defendant  was  not  liable. 

In  America,  dogs  have  not  been  treated  with  the 
like  respect.  Wiley  v.  Slater  (22  Barb.  506)  was 
an  action  to  recover  damages  for  injuries  inflicted 
by  the  defendant's  dog  on  the  plaintiff's  dog.  Judge 
W.  F.  Allen,  who  for  some  years  controlled  the 
finances  of  this  State,  could  not  control  his  sense  of 
the  ridiculous  on  this  occasion,  and  held  forth  as  fol- 
lows: "This  is  the  first  time  I  have  been  called  on 
to  administer  the  law  in  the  case  of  a  pure  dog 
fight,  or  a  fight  iu  which  the  dogs,  instead  of  the 
owners,  were  the  principal  actors.  I  have  had  occa- 
sion to  preside  upon  the  trial  of  actions  for  assaults 
and  batteries  originating  in  affrays  in  which  the 
masters  of  dogs  have  borne  a  conspicuous  part,  and 
acquitted  themselves  in  a  manner  which  might  well 
have  aroused  the  envy  of  their  canine  dependents. 


THE   ANIMAL    KINGDOM     IN    COURT.  65 

The  branch  of  the  law  therefore  applicable  to  direct 
conflicts  and  collisions  between  dog  and  dog  is  en- 
tirely new  to  me,  and  this  case  opens  up  to  me  an 
entire  new  Seld  of  investigation.  I  am  con- 
strained to  admit  total  ignorance  of  the  code  duello 
among  dogs,  or  what  constitutes  a  just  cause  of 
offense,  and  justifies  a  resort  to  the  ultima  ratio 
regem" — [regum,  your  honor  means,  and  very  sig- 
nificant is  the  correct  termination  in  this  con- 
nection)—  "  a  resort  to  arms,  or  rather  to  teeth,  for 
I'edress;  whether  jealousy  is  a  just  cause  of  war, 
or  what  different  degrees  and  kinds  of  insult  or 
slight,  or  what  violation  of  the  rules  of  etiquette, 
entitle  the  injured  or  offended  beast  to  insist  upon 
prompt  and  appropriate  satisfaction,  I  know  not, 
and  am  glad  to  know  that  no  nice  question  upon 
the  conduct  of  the  conflict,  on  the  part  of  the  prin- 
cipal actors,  arises  in  this  case.  It  is  not  claimed 
upon  either  side  that  the  struggle  was  not,  in  all 
respects,  dog-like  and  fair.  Indeed,  I  was  not  be- 
fore aware  that  it  was  claimed  that  any  law,  human 
or  divine,  moral  or  ceremonial,  common  or  statute, 
undertook  to  regulate  and  control  these  matters, 
but  supposed  that  this  was  one  of  the  few  privileges 
which  this  class  of  animals  still  retained  in  the  do- 
mesticated state;  that  it  was  one  of  their  reserved 
rights,  not  surrendered  when  they  entered  into  and 
became  a  part  of  the  domestic  institution,  to  settle 
and  avenge,  in  their  own  way,  all  individual  wrongs 
and  insults,  without  regard  to  what  Blackstone  or 
any  other  jurist  might  write,  speak  or  think  of  the 
'rights  of  persons,'  or  'rights  of  things.'  I  have 
been  a  firm  believer  with  the  poet  in  the  iustruct- 
9 


i 


66  THE    ANIMAL    KIXGDOM    IN    COURT.  -^  | 

ive" — (intuitive,  Mr.  Eeporter,  I  guess) — "if  not 
semi-divine  right  of  dogs  to  fight;  and  with  him 
would  say: 

'  Let  dogs  delight  to  bark  and  bite, 
For  ftod  bath  made  them  so ; 
Let  bears  and  lions  growl  and  fight. 
For  'tis  their  nature  to.' 

"  It  is  possible  that,  had  the  owners  of  both  dogs 
been  present,  the  belligerents  would  have  been 
changed,  and  the  familiar  questions  growing  out  (»f 
son  assmilt  demesne,  and  molliter  manus  imposuit, 
would  have  been  presented,  but  no  such  questions 
are  made  here. 

•'  The  defense  is  not  rested  upon  the  principle  of 
self-defense,  or  defense  of  the  possession  of  the 
master  of  the  victorious  dog.  Had  this  defense 
been  interposed,  a  serious  and  novel  question  would 
have  arisen,  as  to  the  liability  of  the  offending  dog 
for  excess  of  force,  and  whether  he  would  be  held 
to  the  same  rules  which  are  applied  to  human  beings 
in  like  cases  offending;  whether  he  would  be  held 
strictly  to  the  proof  of  the  necessity  and  reasonable- 
ness of  all  the  force  exerted,  under  the  plea  that  in 
defense  of  his  carcase,  or  the  premises  committed  to 
his  watch  and  care,  '  he  did  necessarily  a  little  bite, 
scratch,  wound,  tear,  devour  and  kill  the  plaintiff's 
dog,  doing  no  unnecessary  damage  to  the  body  or 
hide  of  the  said  dog.' " 

Then  follow  some  ohiier  dicta  about  the  facts  of 
the  case,  and  the  judge  winds  up  in  this  entertain- 
ing strain:  "It  is  very  proper  to  invest  dogs  with 
some  discretion  while  upon  their  master's  premises, 
in  regard  to  other  dogs,  while  it  is  palpably  Avrong 


THE    ANIMAL    KINGDOM    IX    COURT.  67 

to  allow  a  man  to  keep  a  dog  who  may  or  will, 
under  any  circumstances,  of  his  own  volition,  attack 
a  human  being.  If  owners  of  dogs,  whether  valua- 
ble or  not,  suffer  them  to  visit  others  of  their  spe- 
cies, particularly  if  they  go  uninvited,  they  must  be 
content  to  have  chem  put  np  with  dog  fare,  and 
that  their  reception  and  treatment  shall  be  hospita- 
ble or  inhospitable,  according  to  the  nature  of  the 
particular  temper  and  mood,  at  the  time,  of  the  dog 
visited.  The  courtesies  and  hospitalities  of  dog  life 
cannot  well  be  regulated  by  the  judicial  tribunals  of 
the  land. 

''  The  evidence  is  slight  that  the  dog  died  in  con- 
sequence of  this  fight.  I  should  infer  from  the  evi- 
dence, that  he  continued  his  annoying  visitations  un- 
til some  one,  who  did  not  own  a  white  dog  with  black 
spots  on  his  head,  made  use  of  a  shot-gun  or 
Sharpe's  rifle,  or  some  other  (sic)  substitute  to  abate 
the  nuisance.  But  as  this  question  is  left  in  doubt 
by  the  evidence,  the  judgment  of  the  justice  is  con- 
clusive as  to  the  cause  of  the  death.  I  can  see,  how- 
ever, no  just  grounds  for  the  judgment.  It  can 
only  be  supported  on  the  broad  ground  that  when 
two  dogs  fight,  and  one  is  killed,  the  owner  can 
have  satisfaction  for  his  loss  from  the  owner  of  the 
victorious  dog;  and  I  know  of  no  such  rule.  The 
owner  of  the  dead  dog  would,  I  think,  be  very 
clearly  entitled  to  the  skin,  although  some,  less  lib- 
eral, would  be  disposed  to  award  it  as  a  trophy  to 
the  victor,  and  this  rule  would  ordinarily  be  a  full 
equivalent  for  the  loss;  and  with  that,  unless  the 
evidence  differ  materially  from  that  in  this  case,  he 
should  be  content." 


68  THE   ANIMAL    KINGDOM    IN"   COURT. 

The  judge  evidently  did  not  own  a  dog,  or  lie 
would  not  have  used  those  heartless  expressions 
about  a  dog's  value. 

In  walking  through  a  park  and  observing  the 
signs,  "All  dogs  found  on  these  grounds  without 
their  owners,  will  be  shot,"  a  friend  of  mine  ex- 
claimed, "  That's  a  hard  case  for  dogs  that  can't 
read."  This  humane  idea  was  carried  into  practice, 
in  favor  of  the  human  species,  at  least,  in  Sarch  v. 
Blackiurn  (4  C.  and  P.  397),  in  which  it  was  held 
that  one  who  entered  an  inner  inclosure  where  a 
fierce  dog  was  confined,  and  was  bitten,  could  main- 
tain his  action  for  damages,  although  "beware  of 
the  dog"  was  posted  up  in  a  conspicuous  place,  it 
being  also  shown  that  he  could  not  read.  This  is 
one  of  the  few  instances  in  which  "ignorance  is 
bliss."'  But  humanity  Avould  suggest  in  such  cases 
the  exhibition  of  some  pictorial  warning  to  trespass- 
ers ;  for  instance,  a  sign  representing  a  man,  with  a 
dog  seizing  him  by  the  seat  of  his  trousers,  would 
be  quite  unmistakable,  and  save  the  time  of  the 
courts.  Nothing,  then,  short  of  physical  blindness 
on  the  part  of  the  trespasser,  or  judicial  blindness 
on  the  part  of  the  court,  would  effect  a  recovery 
from  the  dog's  owner,  although  there  could  be  no 
objection  to  a  recovery,  by  the  help  of  nature,  from 
the  dog. 

A  singular  dog  case  arose  at  the  Eensselaer  cir- 
cuit a  few  years  ago.  The  dog  had  jumped  up  at 
and  thrown  down  and  bruised  a  lad  in  the  sti'cct. 
It  was  proved  that  the  dog's  master  had  taught 
him  to  leap  up  and  take  off  people's  hats  with  his 
teeth.     The  jury  inferred  that  the  animal  was  prac- 


X 


THE   ANIMAL    KINGDOM    IN    COURT.  69 

ticing  this  lesson  on  the  boy,  and  recognizing  no 
reason  why  the  master  shoald  set  himself  up  as  a 
censor  of  the  public  manners,  and  dictate  to  the 
plaintiff  when  to  uncover,  said  that  the  plaintiff 
might  recover. 

In  Loomis  v.  Terry  (17  Wend.  496),  it  appeared 
that  the  plaintiff's  son,  aged  16,  and  a  number  of 
other  boys,  were  hunting  in  the  woods  of  the  de- 
fendant, on  a  Sunday,  where  the  plaintiff's  son  was 
attacked  by  a  hound,  which  sprang  upon  him,  as- 
sisted by  a  slut,  and  brought  him  to  the  ground.  It 
was  shown  that  the  slut  had  puppies  near  by,  which 
fact  tended  to  make  her  cross.  This,  however,  did 
not  produce  such  an  effect  on  the  court  as  the  pre- 
sentation of  the  puppies  did  in  Les  Plaideurs.  It 
appeared  also  that  the  hound  had  previously  bitten 
people,  to  the  knowledge  of  the  defendant.  In 
spite  of  the  fact  that  the  boy  was  a  trespasser,  and 
that,  too,  on  the  Lord's  day,  and  had  excited  the 
maternal  apprehensions  of  the  lady  dog,  a  judgment 
of  $15  was  sustained.  It  is  to  be  feared  that  the 
sympathetic  mind  of  Judge  Cowen  was  affected  by 
the  proof  that  the  defendant,  quite  naturally,  ''had 
wished  his  dogs  had  eaten  the  boy  up."  His  honor 
seems  to  lay  stress  on  the  assumed  fact  that  "a 
fierce  dog  is  kept  without  semblance  of  necessity." 
The  case  does  not  disclose,  but  the  natural  infer- 
ence is,  that  the  hound  was  the  father  of  the  afore- 
said j)uppies,  and  the  spouse  of  the  aforesaid  lady 
dog.  This  being  so,  was  he  not  a  "necessity,"  and 
was  he  not  acting  in  the  line  of  his  duty  and  of  his 
honor,  within  the  recent  cases  of  infringements  on 
domestic  rights?    Judge  Cowen  lived  too  early  to 


70  THE    ANIMAL    KINGDOM    IN    COURT. 

know  the  modern  refinements  on  this  subject.  1 
must  confess,  my  sympathies  are  all  on  the  other 
side  in  this  particular  case.  If  that  young  rascal 
had  been  at  Sunday-school,  learning  his  catechism, 
as  he  ought,  he  would,  at  least,  neve^  have  been 
troubled  by  the  dogmas  of  the  canine  order. 

If  there  is  any  case  in  the  books,  which,  more 
than  another,  deserves  to  be  printed  in  letters  of 
gold,  it  is  the  case  of  Brill  v.  Flagler  (23  Wend. 
354).  In  this  righteous  decision  Judge  Nelson  laid 
it  down  as  the  law,  that  the  inhabitant  of  a  dwell- 
ing-house may  lawfully  kill  the  dog  of  another, 
where  such  dog  is  in  the  habit  of  haunting  his 
house,  and  by  barking  and  howling,  by  day  and  by 
night,  disturbs  the  peace  and  quiet  of  his  family,  if 
the  dog  cannot  be  otherwise  prevented  from  annoy- 
ing them.  It  is  no  wonder  that  the  author  of  these 
words,  so  full  of  somniferous  balm  to  weary  watch- 
ers, rose  to  a  seat  on  the  federal  bench.  "It  would 
be  mockery,"  said  this  excellent  judge,  "to  refer  a 
party  to  his  remedy  by  action;  it  is  far  too  dilatory 
and  impotent  for  the  exigency  of  the  case."  The 
judge  speaks  feelingly.  I  dare  say  the  dogs  at 
Cooperstown  had  been  nocturnally  vociferous  about 
those  days.  As  to  the  "action"  spoken  of,  I  sug- 
gest that  it  would  be  an  admirable  exercise  for  some 
of  the  devotees  of  the  common-law  system  of  plead- 
ing, to  draft  a  declaration  in  an  action  on  the  case, 
on  the  facts  above  stated,  as  a  precedent  for  the 
young  gentlemen  in  their  offices. 

On  this  subject  of  pleading,  it  may  be  observed, 
it  was  once  held,  in  Jenkins  v.  Turner  (1  Ld.  Eaym. 
109),  that  in  an  action  for  keeping  a  boar  accus- 


THE   ANIMAL    KINGDOM    IN"    COURT.  71 

tomed  to  bite  animalia,  the  animalia  was  suffi- 
ciently certain  after  verdict.  And  lulielps  had  been 
adjudged  good  after  verdict  (3  Lev.  336).  It  is 
gratifying  to  learn  that  they  are  good  for  any  thing 
at  any  time. 

But  this  most  striking  case  of  judicial  nervous- 
ness and  rancor  on  the  subject  of  dogs  is  Broivn  v. 
Carpenter  (36  Vt.  638),  in  which  the  chief -justice, 
Redfield,  says:  ''If  any  animal  should  be  regarded 
as  the  common  terror  of  all  peaceable  and  quiet- 
loving  citizens,  it  is  such  a  dog  ; "  that  is  "  a  fero- 
cious and  overgrown  dog,"  "and  the  owner  who 
persists  in  keeping  such  an  animal,  without  effect- 
ually and  physically  restraining  him,  so  that  he  can 
do  no  one  harm,  ought  not  to  complain  of  his  de- 
struction. He  ought  to  be  grateful  to  escape  so;  for 
he  is  undoubtedly  liable  to,  and  justly  deserves,  ex- 
emplary punishment,  under  the  criminal  laws  of 
the  State,  and  if  one  injured  or  liable  to  injury 
chooses  to  right  himself  by  abating  the  nuisance 
only,  he  deserves  to  he  regarded  as  a  pullic  'bene- 
factor.''^ 

So  little  respect  has  the  dog,  an  object  of  tender- 
ness, as  we  have  seen,  in  the  English  courts,  re- 
ceived in  the  American  courts,  that  it  has  been  held 
an  indictable  offense  to  say  of  a  human  being  that 
he  has  a  dogged  disposition.  Thus,  in  Gilbert  v. 
The  People  (1  Denio,  41),  the  indictment  was  for  a 
libel  contained  in  a  declaration  in  a  justice's  court, 
which  stated  that  the  plaintiff  "  had  a  number  of 
sheep  in  the  county  of  Columbia,  and  that  said  de- 
fendant did,  in  the  year  1843,  if  ever,  bite  and 
worry  fifty  of  plaintiff's  sheep,  after  the  said  defend- 


72  THE    ANIMAL    KINGDOM     IN   COURT. 

ant  had  notice  that  he,  the  defendant,  was  subject 
and  accustomed  to  biting  and  worrying  sheep,  if 
such  notice  he  had,  and  the  said  iDhnintiffs  say,  that 
if  defendant  is  guilty  of  any  charge  laid  in  plaint- 
iffs' declaration,  the  said  defendant  ought  to  be 
punished  according  to  the  custom  ;;nd  manner  of 
punishing  sheep-biting  dogs,  as  the  plaintiffs  have 
sustained  great  damage  by  the  conduct  of  the  de- 
fendant;" and  further,  ''that  the  said  defendant 
is  reported  to  be  fond  of  sheep,  bucks  and  ewes, 
and  of  wool,  mutton  and  lambs,  and  that  the  defend- 
ant did  undertake  to  chase,  worry  and  bite  plaint- 
iffs' sheep;  and  with  his  snout,  teeth  and  jaws,  did 
bite  and  injure  i3laintiffs'  sheep,  as  the  said  defend- 
ant is  in  the  habit  of  biting  sheep,  by  report,  to 
plaintiffs'  damage,  in  all,  fifty  dollars;  and  if  de- 
fendant is  guilty  he  should  or  ought  to  be  hanged 
or  shot."  There  was  a  demurrer  because  the  libel 
was  charged  as  occurring  in  a  judicial  proceeding. 
But  the  court  was  not  to  have  the  wool  pulled  over 
its  eyes  in  this  Avay,  and  held  that  the  libel  con- 
tained matter  —  namely,  the  "reports"  and  "hab- 
its " — impertinent  and  irrelevant  to  that  judicial 
proceeding,  and  "intended  to  stir  up  the  passions 
of  the  defendant,  and  to  make  him  an  object  of 
dark  suspicion,  as  well  as  of  ridicule  and  contempt." 
What  the  possible  "  dark  suspicion"  was  the  court 
does  not  inform  us,  and  we  can  only  conjecture 
that  it  may  have  been  that  the  defendant  had  an 
appetite  for  the  hlach  sheei^  of  the  flock. 

Although  the  dog  has  been  thus  harshly  dealt 
with  in  our  courts,  yet  the  cat  seems  to  be  the  sub- 
ject of  especial  favor.     We  are  informed  that  Mr. 


THE    ANIMAL    KINGDOM    IN    COUKT.  73 

Bergh,  the  distinguished  humanitarian,  evidently 
believing  in  the  ancient  adage  that  ''a  cat  may  look 
at  a  king,"  caused  a  man  to  be  sent  to  prison  a  few 
days  ago  for  killing  a  cat.  The  accounts  of  the 
case  give  us  no  information  concerning  the  virtues 
of  this  particular  cat,  nor  of  the  depravity  of  the 
slayer.  We  can  conceive  of  circumstances  under 
which  the  prisoner's  conduct  might  be  construed 
as  justifiable  felicide,  as,  for  example,  when  the 
animal  disturbed  his  slumbers  by  persistent  and 
inharmonious  vocalization  in  the  neighborhood  of 
his  dormitory.  I  myself  would  not  scruple  to 
kill  a  cat  under  such  circumstances  ;  indeed,  I 
mean  to  do  so  unless  certain  cats  in  the  vicinity  of 
my  residence  take  a  hint  from  this  article.  And 
I  defy  Mr.  Bergh  to  hurt  me  for  it,  either.  I 
have  the  authority  of  a  great  Jurist  to  protect  me, 
namely,  Judge  Nelson,  for  if  one  may  laAvfully  kill 
a  dog  that  disturbs  his  slumbers,  why  not  a  cat? 
I  have  no  prejudice  against  well-behaved,  hnme- 
keeping  cats.  Montaigne  had  a  favorite  cat  and  so 
had  Robinson  Crusoe.  But  even  the  example  of 
these  eminent  men  would  hardly  induce  me  to  shut 
a  man  up  in  jail  for  three  months,  and  possibly 
cause  the  starvation  of  a  family,  simply  because  he 
had  killed  a  cat. 

"  The  little  busy  bee  "has  winged  its  way  into 
the  dusty  temple  of  justice.  Earl  v.  Van  Alstyne 
(8  Barb.  630)  was  a  case  in  which  the  plaintiff's 
horses,  traveling  along  the  highway  past  the  place 
where  the  defendant's  bees  were  kept,  and  had  been 
kept  for  eight  or  nine  years,  were  stung  by  them 
so  severely  that  one  died.  It  being  proved  that  the 
10 


74  THE   ANIMAL    KINGDOM    IN    COURT. 

bees  had  never  done  such  a  thing  before,  the  defend- 
ant was  absolved.  What  would  happen  if  they 
should  do  such  a  thing  again  was,  of  course,  not 
considered,  but  after  all  suggests  a  curious  legal 
inquiry,  pondering  which,  the  defendant  might 
well  say  with  Hamlet:  "To  be,  or  not  to  be,  that 
is  the  question."  If  these  useful  little  creatures 
could  have  been  set,  some  years  ago,  at  the  horses 
on  which  Mr.  James,  the  novelist,  was  forever 
mounting  his  "two  travelers,"  they  would  have 
merited  the  praise  of  a  modern  Aristarchus,  and 
have  inspired  a  neAv  Watts. 

In  Gillett  v.  Mason  (7  Johns.  16),  it  was  said  that 
bees  are  fercB  naturce,  but  when  hived  and  reclaimed, 
a  qualified  property  may  be  acquired  in  them.  But 
this  property  must  always  remam  a  qualified  one, 
because  they  are  such  riches  as  "take  to  themselves 
wings." 

"  Seeing  the  elephant "  is  regarded,  in  modern 
times,  as  an  expensive  and  undesirable  business. 
The  phrase  probably  derives  its  origin  from  the 
Punic  wars,  in  which  the  elephants  of  the  Cartha- 
ginians carried  terror  and  dismay  into  the  Eoman 
hosts,  both  man  and  horse  being  unaccustomed  to 
the  sight  of  these  animals.  It  is  singular  that  the 
reporter,  in  writing  the  syllabus  of  Scribner  v.  Kelly 
(38  Barb.  14),  did  not  make  use  of  this  phrase,  which 
would  have  expressed  the  gist  of  the  narration  of 
facts.  This  was  an  action  to  recover  damages  for 
an  injury  caused  by  the  fright  of  the  plaintiff's 
horse  at  the  mere  sight  of  an  elephant  of  the  defend- 
ant, in  traveling  on  the  highway.  No  negligence 
on  the  part  of  the  defendant,  in  the  care  of  the 


THE   AJSIIMAL    KINGDOM    IN    COURT.  75 

elephant,  was  shown,  and  it  was  held  that  the 
action  would  not  lie.  "  To  render  the  defendant 
liable,"  said  the  court,  ''for  the  damage  that  ac- 
crued, it  would  be  necessary  to  show,  not  only 
that  such  is  the  effect  of  the  appearance  of  an  ele- 
phant upon  horses  in  general,  but,  also,  that  the 
defendant  knew  or  had  notice  of  it;  for  if  it  is 
conceded  that  the  elephant  is  of  a  savage  and  fero- 
cious nature,  it  does  not  necessarily  follow  that  his 
appearance  inspires  horses  with  terror."  The  plaint- 
iff's counsel  ought  to  have  had  a  volume  of  Plutarch 
at  hand  to  supply  this  defect  in  proof,  and  to  have 
cited  to  the  court  the  example  of  Pyrrhus,  who  tried 
to  scare  Fabricius  with  the  sudden  appearance  of 
an  elephant.  The  court  may  be  right  in  its  law, 
but  it  seems  to  me,  as  Thurlow  said  of  Eldon,  that 
they  gave  some  very  bad  reasons  for  it.  For  in- 
stance: "Non  constat  that  any  other  moving  object 
of  equal  size,  and  differing  in  appearance  from  such 
as  he  was  accustomed  to  see,  might  not  have  in- 
spired him  with  similar  terror."  Now  if  a  railroad 
train  runs  over  a  man  and  kills  him,  is  it  any  answer 
to  say  that  a  horse  and  wagon  might  have  served 
him  in  the  same  way?  But  again:  "The  injury 
which  resulted  from  his  fright  is  more  fairly  attrib- 
utable to  a  lack  of  ordinary  courage  and  discipline 
in  himself  than  to  the  fact  that  the  object  which 
he  saw  was  an  elephant."  Now  suppose  the  plaint- 
iff in  Brilly.  Flagler  had  set  up  that  the  defendant's 
inability  to  sleep  at  night  was  more  fairly  attribut- 
able to  his  constitutional  nervousness  than  to  the 
howling  of  the  defendant's  dog,  would  that  have 
been  deemed  a  good  reason  for  making  the  defendant 


76  THE    ANIMAL    KINGDOM    IN    COURT. 

pay  for  the  dog?  On  the  whole,  it  would  seem  that 
this  opinion,  although  entitled,  as  the  decision  of 
a  general  term,  to  elephantine  weight,  is  not  char- 
acterized by  elephantine  sagacity. 

Bulls  are  frequently  seen  in  court.  I  do  not  now 
refer  to  those  bulls  that  counsel  make,  but  to  the 
bucolic  fathers  of  the  lierd.  The  former  usually 
come  about  because  counsel  have  not  read  enough; 
the  mischiefs  of  the  latter  are  often  due  to  having 
too  much  red.  For  instance,  in  Hudson  v.  Roberts 
(20  L.  J.  Exch.  299),  the  plaintiff,  while  walking 
along  a  public  street,  Avearing  a  red  handkerchief, 
was  attacked  and  injured  by  the  defendant's  bull, 
which  was  being  driven  along  the  street.  The  de- 
fendant stated,  after  the  accident,  that  the  red 
handkerchief  was  the  cause  of  the  injury,  for  that 
he  knew  the  bull  would  run  at  any  thing  red.  He 
also  stated,  on  another  occasion,  that  he  knew  a 
bull  would  run  at  any  thing  red.  Held,  that  his 
knowledge  of  the  article  was  definite  enough  to  make 
him  liable  in  this  case.  Baron  Alderson  humanely 
remarked:  "  A  man  must  not  take  a  lion  through 
the  public  streets,  merely  because  he  may  not  know 
that  the  lion  has  actually  devoured  a  man  before." 

An  important  leading  case  is  Blackmail  v.  Sim- 
raons  (3  C.  and  P.  138),  which  was  an  action  for 
injuries  sustained  by  the  plaintiff  at  the  horns  of 
defendant's  bull.  There  were  some  circumstances 
of  mitigation  for  the  bull's  misconduct.  The  plaint- 
iff was  driving  a  cow  with  a  stick.  This  gallant 
but  inconsiderate  bull,  excited  by  the  spectacle  of 
the  indignity  offered  to  one  of  his  own  kine,  rushed 
at  the  plaintiff,  who  hit  him  with  the  stick.     Then, 


I 


THE   ANIMAL    KINGDOM    IN    COURT.  77 

of  course,  the  bull,  as  he  lawfully  might,  ■Diolliter 
oornua  imposuit,  and  simply  broke  two  of  his  ribs. 
Unfortunately  for  the  bull's  owner,  who,  up  to  this 
point,  .undoubtedly  had  the  court  with  him,  it  was 
proved,  that  when  he  purchased  the  bull,  he  was 
warned  that  he  was  vicious,  and  had  answered  that 
this  was  no  objection  —  he  would  "  turn  it  into  a 
mead  where  he  was  annoyed  by  people  fishing;" 
and  that  he  kept  him  insecurely  hoppled.  The 
judge  —  not  Buller,  strange  to  say,  but  Best  — 
mildly  characterized  this  conduct  as  "wicked," 
and  said  this  was  no  way  to  abate  the  nuisance 
complained  of.  If  trespassers  came  to  hook  his 
bull-heads  and  "horn-pouts,"  still  he  was  not  jus- 
tified in  setting  his  bull  to  hook  tJiein.  The  ver- 
dict for  the  plaintifl;  was  sustained. 

Earns  have  also  been  in  court.  It  was  held  in 
Jackson  and  Wife  v.  Smitlison  (15  M.  and  W.  563), 
in  support  of  a  verdict  for  the  plaintiffs,  that  the 
declaration  which  stated  that  the  defendant  wrong- 
fully and  injuriously  kept  a  ram,  well  knowing  that 
he  was  prone  and  accustomed  to  attack,  butt  and 
injure  mankind,  etc.,  was  not  defective  in  not  stat- 
ing that  he  negligently  kept  the  ram.  The  negli- 
gence is  presumed.  From  the  ramifications  of 
Oahes  and  Wife  v.  Spaulding  and  OaJces  (1868,  7 
x\m.  Law  Eeg.  551,  in  Vermont),  the  principle  is 
deduced  that  the  owner  is  liable  for  injuries  done 
by  an  animal  which  is  known  to  be  fierce  or  danger- 
ous, though  it  does  not  belong  to  a  class  fer(B 
naturae.  This  action  was  brought  to  recover  dam- 
ages for  an  injury  done  to  Mrs.  Oakes  by  a  ram, 
which  was  jointly  owned  by  the  defendants,  both  of 


78  THE    ANIMAL    KINGDOM    IN   COURT. 

whom  had  been  for  a  considerable  time  "  awai-e  that 
the  ram  had  an  unusual  propensity  to  butt,  and 
had  on  several  previous  occasions  attacked  and 
butted  jjersons."  Whether  proof  was  offered  that 
this  ram  had  butted  persons  behind,  as  well  as  before, 
does  not  appear.  The  defendant  Oakes,  who  may 
have  been  related  to  the  plaintiff,  husband  Oakes, 
did  not  defend.  Poor  Spaulding  was  caught  in  a 
dilemma,  of  which  he  was  at  liberty  to  take  either 
horn,  for  the  defendants  were  held  to  be  jointly  lia- 
ble. There  was  a  verdict  for  11,500.  The  case 
does  not  disclose  the  nature  of  the  injuries,  nor 
from  what  quarter  this  ill-bred  animal  assaulted 
Mrs.  Oakes,  but  we  infer  that  from  the  force  of  cir- 
cumstances, she  fell  "butter-side  up."  But  was 
she  not  imprudent  in  trusting  herself  in  the  field 
with  the  ram?  She  ought  to  have  remembered  how 
the  walls  of  Jericho  went  down  at  the  mere  blast  of 
ram's  horns,  and  the  story  of  the  golden  fleece,  and 
measured  her  chances  against  so  jjotent  and  reckless 
an  animal  as  this  assault-and-battering-ram. 

Last,  but  not  least  singular,  in  this  curious  list  is 
the  monkey.  May  v.  Burdett  (9  A.  and  E.  101) 
was  an  action  to  recover  damages  for  an  injury  to 
the  plaintiff  by  the  bite  of  a  monkey.  There  was  a 
recovery.  The  court  took  it  for  granted  that  the 
animal  was  feroB  natures.  How  they  could  do  this, 
when  the  animal  in  question  is  so  nearly  like  a  hu- 
man being,  is  not  easy  to  discover.  Who  knows 
but  that  their  lordships  themselves,  in  some  former 
state  of  existence  had  worn  tails?  Lord  Monboddo 
thought  mankind  a  sort  of  superior  ape,  in  whom 
civilization  had  abraded  and  erased  the  caudal  mem- 


THE    ANIMAL    KINGDOM    IN    COUET.  79 

■t 

ber.  It  is  impossible  to  decide  that  he  is  wrong, 
and  in  some  future  existence,  when  the  brutes  have 
their  rights  in  turn,  as  the  horses  among  the 
Houhnhnms,  these  arrogant  English  judges  may  find 
themselves  docked,  in  literal  earnest,  and  their  victims 
holding  possession  of  the  judicial  bench  in  fee  tail.* 
Since  writing  the  above  my  attention  has  been  called 
to  an  article  in  the  London  Laio  Times,  on  "  Injuries 
from  Domestic  Animals,"  in  which  the  writer  com- 
plains of  the  absurdity  of  the  rule  exempting  the 
owner  of  a  domestic  animal  from  liability  for  dam- 
age inflicted  by  such  animal,  unless  he  is  proved  to 
have  known  that  the  animal  was  of  a  vicious  or 
mischievous  disposition.  He  winds  up  in  a  strain 
suited  to  my  purposes  and  views:  "Not  improba- 
bly, however,  we  may  have  to  wait  until  some  of 
our  legislators,  being  bitten  by  dogs  or  gored  by 
bulls  which  had  previously  borne  a  most  unim- 
peachable character  for  mildness  and  general  amia- 
bility, find  out,  by  experience,  that  the  existing 
state  of  the  law  has  its  inconveniences.  We  scarcely 
think  that  the  contemplation  of  the  previous  vir- 
tues, however  exemplary  they  may  have  been,  of  the 
animal  which  has  injured  them,  will  at  all  con- 
vince them  that  the  law  which  enables  them  to  es- 
cape scot  free  is  the  perfection  of  reason."  One  in 
this  State,  however,  finds  it  difficult  to  understand 
his  apparent  tenderness  of  the  Legislature.  That 
which  he  seems  to  regard  as  a  misfortune  would 
here  be  deemed  a  boon. 


*  Tho  above  was  ■written  before  the  appearance  of  Mr.  Darwin's  new 
book,  in  which  that  learned  and  ingenious  gentleman  demonstrates 
the  correctness  of  these  conjectures. 


80  NEGLIGENCE. 


NEGLIGENCE. 


In  this  busy  world  men  seldom  stop  to  reflect  on 
the  multitude  of  dangers  by  which  they  are  sur- 
rounded. We  walk  through  perils  thick  as  grass- 
blades.  Most  of  these  are  the  result  of  the  negli- 
gence of  our  fellow-men.  Very  few  are  inevitable. 
We  are  accustomed  to  regard  war  as  the  state  of 
greatest  insecurity,  but  peace  hath  her  perils  no  less 
profound  than  war.  The  prescriptive  right  of  death 
on  the  battlefield  is  but  little  stronger  than  in  an 
apothecary's  shop,  with  a  careless  clerk.  One  may 
have  his  head  taken  off  by  a  cannon  ball  in  battle, 
but  he  is  also  liable  to  have  it  cracked  by  a  brick 
from  a  chimney.  One  may  be  rendered  hors  du 
comhat  by  a  charge  of  cavalry,  but  in  turning  a 
street  corner  he  is  not  secure  from  annihilation  by 
a  runaway  steed.  A  bayonet  thrust  in  the  abdo- 
men is  not  a  pleasant  thing,  but  so  is  not  impale- 
ment on  a  cane  or  umbrella  in  a  crowd.  A  bullet 
in  your  head  is  decidedly  confusing,  but  so  is  your 
neighbor's  vicious  bull  let  in  your  front-door  yard. 

Man  is  continually  striving  to  evade  responsi- 
bility for  his  passive  ''inhumanity  to  man."  The 
cry,  "Am  I  my  brother's  keeper?"  is  echoed  after 
six  thousand  years,  in  every  suit  for  damages  occur- 
rmg  through  negligence.  The  law,  in  its  funda- 
mental maxims,  recognizes  our  duty  of  care  for  one 
another.     It  concedes  the  right  of  property  only  on 


NEGLIGENCE.  81 

the  condition  of  care  toward  others  —  sic  iitere  tiic 
ut  non  alienum  Imdas.  Being  thus  bound  to  some 
degree  of  consideration  of  the  welfare  of  others, 
man  invents  various  ingenious  theories  to  lessen  the 
degree,  and  so  we  have  the  doctrines  of  contributory 
negligence  and  imputed  negligence.  Thus  arose 
the  struggle  that  has  been  going  on  for  years  in  the 
courts  of  New  York,  to  make  negligence  a  question 
of  law.  One  judge  in  England,  in  a  recent  case, 
doubted  whether  actions  for  negligence  ought  to  be 
favored,  and  whether  a  traveler,  as  a  member  of  so- 
ciety, ought  not  to  bear  his  breaks  and  bruises 
uncomplainingly,  as  part  of  the  unavoidable  ills  that 
society  is  heir  to.  My  own  impression  is  that  every 
man  ought  to  be  left  to  his  own  tastes  on  this  point. 
If  the  English  judge  finds  in  such  considerations  a 
salve  for  his  broken  bones,  and  the  wherewithal  to 
pay  his  surgeon,  let  him  be  indulged  like  any  other 
harmless  maniac.  A  learned  friend  of  mine,  who 
approves  of  capital  punishment,  saj'S  that  he  would 
advise  that  in  capital  trials,  one  of  the  inquiries 
should  be,  what  were  the  views  of  the  deceased  on 
the  subject  of  capital  punishment,  and  that  the 
punishment  of  the  criminal  be  adapted  to  the  opin- 
ions of  his  victim.  Would  not  this  be  a  good  idea, 
in  case  of  death  produced  by  negligence?  Let  the 
judge's  surviving  relatives  stand  or  fall  by  their 
decedent's  notions.  But  it  is  too  much  to  expect 
that  weak  human  nature  should  rise  at  once  to  the 
exalted  plane  of  his  lordship's  philanthropy. 

It  must  be  remembered,  too,  that  the  common 
law  had  a  nice  little  dogma  —  actio  personalis  mori- 
tur  cum  persona  —  a  personal  action  dies  with  the 
11 


82  NEGLIGENCE. 

person.  So,  if  through  the  negligence  of  another, 
one  was  almost  killed,  he  might  recover  damages; 
but  if  he  was  quite  killed,  no  right  of  action  sur- 
vived to  his  relatives.  Dead  men  tell  no  tales,  and 
warrant  no  lawsuits.  It  is  true  that  statutes  have 
been  enacted  in  many  communities,  correcting  this 
defect;  but  as  if  to  encourage  murder,  the  right  to 
recover  has  been,  in  a  majority  of  instances,  lim- 
ited to  some  specific  sum,  much  lower  than  would 
ordinarily  be  awarded  for  injuries  not  mortal. 

The  doctrine  of  negligence  has  caused  a  good 
deal  of  oscillation  in  the  scales  of  justice,  and  very 
strange  cases  have  come  before  the  courts.  Some 
of  these  are  not  unfamiliar,  but  it  may  serve  to 
amuse  a  leisure  moment  to  collect  them,  and  refresh 
our  memories  in  their  oddities. 

Scott  V.  Slieplierd  (2  W.  Bl.  892)  is  the  leading 
case  on  this  subject.  The  defendant  threw  a 
lighted  squib,  or  serpent,  made  of  gunpowder,  into 
the  market-house,  where  a  large  concourse  of  peo- 
ple were  assembled.  It  fell  on  the  standing  of  one 
Yates,  who  sold  gingerbread.  One  Willis,  to  pre- 
vent injury  to  himself  and  the  wares  of  Yates,  took 
it  up  instantly  and  threw  it  across  the  market- 
house.  It  fell  upon  the  standing  of  one  Ryall,  who 
sold  the  same  sort  of  wares;  he,  in  like  manner  and 
with  a  similar  intent,  threw  it  to  another  part  of  the 
market-house,  when  it  struck  the  plaintiff  in  the 
face,  and  bursting,  put  out  one  of  his  eyes.  The 
plaintiff  recovered  damages.  The  main  discussion 
was  as  to  the  form  of  the  action.  The  conduct  of 
Willis  and  Ryall  was  declared  to  be  necessary  in 
self-preservation,  and  for  the  protection  of  their 


NEGLIGENCE.  83 

goods.  Justice  Gonld.  observed  that  ''the  defend- 
ant may  be  considei'ed  in  the  same  view  as  if  he 
himself  had  personally  thrown  the  sqnib  in  the 
plaintiff's  face;"  and  Justice  Nares,  apparently  in- 
nocent of  an  intentional  pun,  approved  this  idea  and 
quoted  the  maxim,  ^'Qui  facit  per  alium,  facit  per 
se."  Whether  the  same  doctrine  would  prevail  in 
case  of  a  libelous  and  inflammatory  "  squib,"  copied 
from  one  newspaper  into  another,  was  not  consid- 
ered, but  is  an  interesting  question.  And  so  the 
report  of  this  squib  has  resounded  for  a  hundred 
years,  and  if  it  be  considered  as  a  ''  serpent,"  it  has, 
like  its  prototype  in  Eden,  laid  the  foundation  of  a 
great  deal  of  strife  and  litigation,  and  its  trail  is  yet 
to  be  seen  in  the  courts. 

G^iille  V.  Swan  (19  Johns.  381)  is  a  famous  case. 
Mr.  Guille  Avas  a  person  whose  thoughts  and  wishes 
carried  him  above  the  earth.  He  longed  for  some- 
thing higher  and  better  than  worldly  things.  He 
was  an  aeronaut.  He  made  a  voluntary  ascent  in 
the  vicinity  of  Swan's  garden,  and  an  unwilling  de- 
scent into  the  same.  In  his  peril  he  called  aloud  to 
the  pursuing  crowd  to  help  him.  Meanwhile  he 
was  being  dragged  along  in  the  balloon,  and  caus- 
ing some  slight  damage  to  Mr.  Swan's  garden  sauce. 
The  crowd,  consisting  of  some  two  hundred  good  Sa- 
maritans, broke  through  Swan's  fences  and  threw  his 
vegetable  and  flowers  into  great  disorder.  Now,  it 
was  lawful  for  Mr.  Guille  to  ascend.  It  was  lawful 
for  the  crowd  to  follow,  gaze,  and  admire,  for  the 
balloonist  to  call  on  them  in  his  extremity,  and  for 
them  to  rush  to  his  rescue.  But  Mr.  Guille  had  to 
pay  for  Swan's  garden  sauce.     It  was  unquestiona- 


84  NEGLIGENCE. 

bly  very  selfish  and  narrow-minded  for  Swan  to  in- 
sist on  indemnity,  but  he  took  a  worldly  view  of  the 
affair.  He  had  no  interest  in  the  sublime  problem 
of  serial  navigation;  he  had  no  individual  friendship 
for  the  aeronaut,  he  had  no  general  care  for  the 
crowd;  all  he  knew  was  that  his  radishes  and  other 
esculent  roots  had  been  spoiled,  and  he  wanted  his 
pay,  and  he  got  it.  So  mean  is  human  nature;  but 
we  have  to  deal  with  it  as  we  find  it. 

It  seems  rather  hard  that  one  must  be  answeral)le 
for  the  vegetable  and  floral  consequences  of  human 
curiosity,  and  for  the  officiousness  of  two  hundred 
friends,  when  half  a  dozen  would  have  answered 
every  purpose.  If  science  has  to  struggle  against 
such  things  it  is  to  be  feared  that  the  navigation  of 
the  air  will  remain  an  unsolved  problem.  If  garden 
shoots  are  to  be  preferred  to  parachutes,  man  must 
be  content  to  crawl  along  the  potato-and-radish- 
bearing  earth  at  the  snail's-pace  of  sixty  miles  an 
hour.  This  idea  of  the  consequences  of  curiosity 
troubles  us.  If  this  is  the  law,  then  Mr.  Barnum, 
in  transporting  his  fat  woman  or  Chinese  giant 
about  the  country,  might  be  made  to  answer  for  the 
safety  of  the  bridges  broken  down  by  the  crowds  as- 
sembled to  gaze  at  those  unrivaled  monstrosities. 

In  VandenburgU  v.  Trvax  (1  Denio,  464),  it  was 
held  that  where  the  defendant,  having  had  a  quar- 
rel with  a  boy  in  a  street  in  a  city,  took  up  a  pick- 
ax and  followed  him  into  the  store  of  his  employer, 
the  plaintiff,  whither  he  fled,  and  in  endeavoring  to 
keep  out  of  defendant's  reach,  the  boy  ran  against 
and  knocked  out  the  faucet  from  a  cask  of  wine,  by 
means  of  which  a  quantity  of  the  wine  ran  out  and 


NEGLIGENCE.  85 

was  wasted,  the  defendant  was  liable  to  the  plaintiff 
for  the  damage.  The  action  of  the  boy  was  reason- 
able, for  from  the  nature  of  the  defendant's  weapon, 
it  was  evident  that  he  intended  to  pick  a  quarrel 
with  him.  The  injury  of  the  plaintiff  was  not  the 
necessary  consequence  of  the  defendant's  act,  but 
the  act  was  of  such  a  nature  that  it  might  naturally 
result  in  an  injury  to  a  third  person.  If  the  boy 
ran,  the  wine  might  run,  and  it  is  axiomatic  to  say 
that  if  Mr.  Truax  set  in  motion  a  pick-ax,  he  must 
abide  the  consequences,  direct  and  indirect.  It 
must  not  be  su]3posed,  however,  that  the  defendant 
would  have  been  liable  for  any  injuries  beyond 
those  immediately  connected  with  the  occurrence. 
If  the  wine  had  leaked  through  upon  the  premises 
of  one  living  under  this  store,  for  instance,  he  would 
not  have  been  answerable  for  that  damage.  Any 
different  doctrine  would  involve  a  possible  train  of 
consequences  similar  to  those  in  the  nursery  legend 
of  the  old  woman  and  her  pig. 

In  Bush  V.  Brainard  (1  Cowen,  78)  it  was  de- 
cided that  an  action  will  not  lie  for  carelessly  leav- 
ing maple  syrup  in  one's  uninclosed  wood,  whereby 
the  plaintiff's  cow,  being  suffered  to  run  at  large, 
and  having  strayed  there,  is  killed  in  drinking  it. 
This  was  based  on  the  ground  that  the  cow  had  no 
right  there.  The  defendant  in  this  action,  on  the 
other  hand,  could  not  have  maintained  an  action 
against  the  owner  of  the  cow  for  the  loss  of  his  syrup, 
because,  as  the  court  said,  "  he  was  guilty  of  gross 
negligence  in  leaving  his  syrup  where  cattle  run- 
ning at  large  in  the  woods  might  have  access  to  it." 
The  plaintiff's  case  seems  to  have  been  fatally  defect- 


86  NEGLIGENCE. 

ive  in  proof.  There  was  no  evidence  to  show  that 
it  was  the  disposition  of  cows  to  drink  maple  syrup, 
or  that  such  indulgence  was  apt  to  be  fatal,  nor 
that  the  defendant  had  actual  or  presumed  knowl- 
edge or  notice  of  such  disposition  or  result.  Leav- 
ing out  of  view  the  question  of  trespass,  the  plaint- 
iff ought  to  have  failed  through  his  own  weakness. 
Cole  V.  Fislier  (11  Mass.  136)  was  an  action  of 
trespass,  vi  et  armis.  The  ''  arms "  was  a  gun, 
which  the  defendant  discharged,  whereby  the 
plaintiff's  horse  was  frightened  and  ran  away  with 
his  chaise,  breaking  it.  The  case  came  before  the 
court  on  an  agreed  statement  of  facts,  viz. :  the  de- 
fendant, after  washing  out  two  guns,  went  to  the 
door  of  his  shop,  and  standing  there,  discharged 
one  of  the  guns  for  the  purpose  of  drying  it,  the 
shop  door  being  a  rod  distant  from  the  highway. 
The  plaintiff's  horse  was  standing  harnessed  in  a 
chaise  on  the  opposite  side  of  the  highway. 
Being  frightened  by  the  discharge,  he  broke  the  fas- 
tening and  ran  away,  injuring  the  vehicle.  The 
horse  being  unharnessed  and  put  into  a  pasture  in 
the  defendant's  neighborhood,  the  latter  discharged 
another  gun,  for  the  like  purpose  of  drying  it. 
Upon  this  statement  the  opinion  of  the  court  was 
demanded.  It  was  not  shown  that  the  defendant 
knew  of  the  vicinity  of  the  horse,  and  consequently 
he  could  not  foresee  that  the  horse  would  go  off  if 
his  gun  did.  The  pertinence  of  the  second  firing 
is  a  profound  mystery,  unless  it  may  be  argued  that 
it  tended  to  discharge  the  defendant.  Possibly  it 
was  hoped  that  on  the  homoeopathic  principle  of 
similia  similibus  curantur    this    last    act    Avould 


NEGLIGENCE.  8? 

restore  the  vehicle  to  a  sound  condition.  This 
principle  of  physic  proved  effectual  in  the  case  of 
the  wise  man  who  jumped  into  the  briar-bush. 
The  court  gave  judgment  for  the  plaintiff,  and  im- 
proved the  opportunity  to  descant  upon  the  impro- 
priety of  discharging  fire-arms,  under  nearly  every 
conceivable  state  of  circumstances  except  those 
agreed  upon  as  the  facts  in  this  case. 

Leliman  v.  City  of  'BrooTclyn  (29  Barb.  334)  is  a 
warning  to  mothers  of  young  children.  There  was 
a  well  in  one  of  the  public  streets  of  Brooklyn,  level 
with  the  grade  of  the  sidewalk,  and  usually  closed 
with  a  wooden  cover,  having  a  square  opening  in 
the  center,  which  was  also  covered  with  a  lid  on 
leathern  hinges.  A  child  four  years  old  was  found 
dead  in  the  well,  within  half  an  hour  after  his  leav- 
ing home.  In  this  action,  by  the  child's  adminis- 
trator, it  was  held  that,  considering  the  tender 
years  of  the  child  and  the  nature  of  the  accident, 
the  plaintiff  was  bound  to  show  how  the  occurrence 
came  about,  and  to  explain  how  the  child  came  to 
the  well,  and  whether  it  was  closed  or  not  when  he 
came  there.  For  aught  that  appeared,  his  mother 
may  have  thrown  him  there,  or  he  may  have  rashly 
importunate  gone  to  his  death,  like  Saxe's  Briefless 
Barrister,  who 

"  espied  a  deep  hole  in  the  ground, 


And  sighed  to  himself,  it  is  well." 

Consequently  the  recovery  was  held  not  main- 
tainable. Whether  the  truth  lay  at  the  bottom  of 
that  particular  well,  we  have  no  information,  for 
this  is  the  last  of  the  case  in  the  books,  and  we  are 
in  the  dark  whether  Lehman  brought  appeal,  in- 


88  NEGLIGENCE. 

voked  the  aid  of  the  court  in  a  new  trial,  or  was 
squeezed  dry  on  the  first.  The  chagrin  of  the 
plaintiff's  attorney  must  have  been  materially  miti- 
gated by  Judge  Brown's  remarking,  in  the  opinion- 
*'This  action  was  most  indifferently  and  ineflB- 
ciently  tried,  for  the  examinations  failed  to  bring 
out  the  facts  upon  which  its  determination  must 
ultimately  depend." 

Castles  V.  Diiryea  (32  Barb.  480)  is  a  singular 
case.  The  famous  Seventh  regiment  New  York 
militia,  in  July,  1855,  under  official  orders,  were 
encamped  at  Kingston,  the  defendant  being  in  com- 
mand as  colonel.  The  plaintiff  visited  the  camp 
ground  with  her  infant  child,  and  was  sitting  with 
other  spectators  at  a  place  appointed  for  them  by 
the  officers  of  the  regiment.  During  the  evolu- 
tions of  the  regiment  the  defendant  gave  the  com- 
mand to  fire,  the  regiment  then  facing  the  specta- 
tors, about  three  hundred  and  fifty  feet  distant,  the 
colonel  being  eighty  paces  in  front  of  the  regiment. 
It  was  supposed  that  the  guns  were  loaded  only 
with  blank  cartridges,  but  a  musket  ball  struck  the 
plaintiff,  permanently  crippling  her  arm,  and  killed 
the  child.  It  was  proved  that  earlier  in  the  day  of 
this  occurrence,  the  company  from  which  the  fatal 
ball  must  have  proceeded,  had  been  engaged  in  tar- 
get shooting  with  ball  cartridge;  some  of  the  guns 
were  not  discharged,  although  the  caps  exploded. 
In  pursuance  of  orders,  these  guns  were  examined 
and  supposed  to  be  unloaded.  There  was  a  general 
order  that  each  captain  should  cause  an  inspection 
of  arms  thirty  minutes  before  going  into  line,  to 
see  that  they  were  not  loaded.     The  court  left  the 


NEGLIGEXCE.  89 

case  to  the  jury,  who  found  for  the  phiintiff.  The 
court  charged  the  jury  that  the  plaintiff  could  not 
recover  unless  she  proved  negligence  on  the  part  of 
the  defendant;  that  no  action  could  be  maintained 
against  him  for  an  act  done  by  him  in  the  execu- 
tion of  his  office,  and  within  the  scope  of  his  author- 
ity, if  done  with  all  reasonable  care  and  caution; 
nor  was  he  responsible  for  the  negligence  of  those 
under  his  command,  unless  he  gave  an  improper 
order,  or  neglected  to  give  a  proper  one,  or  neg- 
lected some  prudent  and  necessary  precaution.  The 
questions  of  fact  not  coming  up  for  review  on  the 
appeal,  we  are  left  to  conjecture  to  discover  the 
ground  of  the  recovery,  but  it  probably  was  the  fir- 
ing in  the  direction  of  the  spectators.  This  was 
rather  hard  measure  for  the  gallant  colonel,  who  had 
boldly  exposed  himself  to  the  same  or  even  greater 
pei'il.  Probably  he  had  witnessed  the  target  prac- 
tice that  morning,  and  concluded  that  the  danger 
of  being  hit  was  trifling.  Perhaps,  recollecting  the 
man  in  the  old  Greek  story,  who,  seeing  an  un- 
skillful archer  shooting  at  a  mark,  placed  himself  in 
front  of  the  target  as  the  only  place  of  safety,  he 
considered  himself  and  the  spectators  in  the  safest 
positiou.  If  this  be  so,  his  contempt  for  the  skill 
of  his  command  cost  him  $1,500.  Next  time  he 
will  probably  order  them  to  fire  in  the  air,  having 
previously  harvested  all  the  small  boys  from  the 
neighboring  trees.  The  damages  were,  perhaps, 
mitigated  by  the  proof  that  the  regiment  had  hu- 
manely paid  the  doctors,  and  erected  a  monument 
to  the  child.  The  action  was  for  the  injury  to  the 
mother  alone. 
12 


90  NEGLIGENCE. 

Ryan  v.  The  New  York  Central  Railroad  Com- 
paiiy  (35  N.  Y.  210)  is  a  novel  and  interesting  case. 
The  defendants,  through  the  negligent  management 
of  one  of  their  engines,  set  fire  to  one  of  their  wood- 
sheds.    The  flames  communicated  to  and  consumed 
the  plaintiff's  house,  130  feet  distant.     The  plaint- 
iff was  nonsuited  and  the  court  of  appeals  affirmed 
the  judgment,  on  the  ground  that  the  damages  were 
too  remote,  and  not  the  necessary  and  natural  re- 
sult of  the  negligence.     The  cases  of  the  squib,  the 
balloon  and  the  wine  cask  were  distinguished  from 
this  by  the  feature  of  intention  which  entered  into 
them.     But  after  giving  this  excellent  and  unan- 
swerable reason  for  their  judgment,  the  court  pro- 
ceed to  strengthen  their  position  by  assigning  an- 
other, entirely  fallacious  and  ineffectual;  they  say 
the  plaintiff  ought  not  to  recover,  because  ''  no  such 
action  has  ever  been  sustained  in  the  courts  of  this 
country,  although  the  occasion  for  it  has  been  fre- 
quent and  pressing."     By  "sustained"  the  judge 
means  "prosecuted."     He  then  instances  the  great 
fire  in   Harper's   publishing   establishment,  which 
arose  from  negligence,  and  says:    "  Yet  we  have  no 
report  in  the  books  and  no  tradition  of  any  action 
brought  against  them  to  recover  such   damages." 
He  also  quotes  Littleton's  rule,  "what  never  was, 
never  ought  to  be,"  which  is  about  as  reliable  as 
"whatever  is,   is  right."      Now  it  seems  a  weak 
answer  to  a  claim  of  right,  that  the  claim  is  novel. 
In  the  class  of  cases  under  consideration,  j)arties 
have  generally  had  no  inducement  to  bring  their 
action,   because  they  have  been  insured.     And  if 
they  were  not,  the  very  wealth  which  would  enable 


NEGLIGENCE.  91 

the  negligent  party  to  respond  in  damages  wonld 
deter  the  injured  party  from  entering  iijDon  a  long 
and  expensive  litigation.  It  is  notorious  that  no 
judgment  can  be  collected  of  a  railroad  company 
except  at  the  very  end  of  the  law's  rope. 

Suppose  Col.  Duryea  had  set  up  in  answer  to 
Mrs.  Castles  that  her  claim  was  insupportable,  be- 
cause, although  such  occurrences  must  have  taken 
place  at  musters  before,  yet  people  had  suffered 
their  wounds  silently  like  good  citizens,  and  said 
nothing  about  them,  and  so  ought  she.  Would 
that  have  been  an  answer?  The  learned  and  accom- 
plished judge  who  writes  in  this  case  would  not 
have  thought  so.  Chief  Justice  Shaw  once  conde- 
scended to  use  the  same  reason,  in  a  case  where  he 
had  another  reason  that  was  sufficient — A7ithony  v. 
Slaid  (11  Mete.  290).  The  action  concerned  a  pau- 
per, and  perhaps  the  judge  thought  a  poor  reason 
befitted  such  a  case.  But  one  good  reason  is  better 
than  a  good  one  and  a  poor  one,  in  any  case.  Judge 
Cowen  once  nonsuited  a  plaintiff  for  a  reason  that 
occurred  to  his  mind,  and  not  suggested  by  coun- 
sel. "And  then,  your  honor,"  said  the  defendant's 
counsel,  rising,  "  there  is  another  reason."  "  What 
do  you  want  of  another?"  interrupted  the  great 
judge,  "  isn't  one  good  reason  enough?" 

It  has  been  repeatedly  held,  that  if  one  sets  man- 
traps on  his  own  land,  he  is  liable  for  injuries  aris- 
ing therefrom,  even  to  trespassers,  unless  ample 
notice  has  been  given  of  the  existence  of  the  traps. 
But  this  rule  does  not  apply  as  between  the  proprie- 
tor of  a  theater  and  an  actor  in  his  employ.  So 
held  in  Seymour  v.  Maddox  (16  Q.  B.  326),  which 


92  NEGLIGENCE. 

was  the  case  of  an  actress,  who,  in  passing  off  the 
stage,  fell  through  an  open  trap  door  and  was  in- 
jured. The  court  said  the  proprietor  was  under  no 
obligation  to  guard  and  light  such  places,  and  made 
light  of  the  plaintiff's  injuries,  remarking:  ''The 
servant  is  not  bound  to  enter  the  master's  service; 
but  if  he  does  and  finds  things  in  a  certain  state,  he 
must  take  the  consequences,  if  any,  that  may  occur, 
owing  to  such  a  state  of  things."  Now,  would  not 
the  manager's  liability  in  such  a  case  depend,  by 
this  course  of  reasoning,  on  whether  the  trap  was 
open  or  shut  at  the  time  the  engagement  was  formed  ? 
If  the  actress  hired  out  with  the  trap  and  her  eyes 
open,  of  course  she  ran  her  own  risks  of  herself  and 
her  engagement  falling  through  together;  but  if  it 
were  then  shut,  had  she  not  a  right  to  presume  that 
it  would  continue  to  be  closed?  How  else  could  she 
be  presumed  to  have  "  found  things  in  a  certain 
state?" 

But  it  makes  a  difference,  it  seems,  whether  one 
is  hurt  in  going  down  or  coming  up.  Thus,  in 
Brijdon  v.  Steivart  (2  Macq.  H.  L.  30),  it  was  held, 
that  where  a  workman  in  the  mine  of  the  defendant 
was  killed  while  coming  up,  by  a  stone  falling  upon 
him,  through  the  carelessness  of  the  defendant,  the 
defendant  was  liable  in  an  action  by  the  widow, 
although  the  deceased  was  coming  up  on  a  strike, 
and  with  the  intention  of  quitting  work,  unless  his 
demands  were  complied  with.  The  House  of  Lords 
said  that  the  defendant,  having  let  the  deceased 
down,  was  bound  to  bring  him  up  in  safety.  So  in 
the  case  of  the  actress  —  if,  in  the  character  of  La 
Comare,  in  the  opera  of  Crispino,  she  had  safely 


KEGLIGENCE.  93 

descended  into  the  well,  but,  owing  to  the  manager's 
want  of  care,  had  sufEered  injury  in  her  ethereal  per- 
son in  coming  up  again,  an  action  would  have  been 
maintainable.  And  if  the  GJiost  in  Hamlet,  after 
having  comfortably  rendered  up  himself  to  sulphur- 
ous and  tormenting  flames  in  the  first  act,  should 
experience,  through  the  manager's  negligence, 
while  coming  up  to  prod  Hamlet  in  the  third  act, 
the  correctness  of  Virgil's  remark,  Facilis  decensus 
Averni,  sed  revocare  gradum,  etc.,  would  not  the 
manager  be  bound  to  make  a  sound  man  of  the 
shattered  ghost? 

But  though  it  makes  a  difference  whether  one  is 
hurt  in  coming  up  or  going  down,  it  makes  no  dif- 
ference, it  seems,  whether  one  is  hurt  in  going  for- 
ward or  backward.  Thus  in  Milliinan  v.  Neio  York 
Ceiitral,  etc.,  Railroad  Co.  (11  N.  Y.  Sup.  Ct.  Eep. 
409),  it  was  held  that  where  a  passenger  was  about 
to  alight  from  the  defendant's  car,  which  had  been 
stopped  for  the  purpose,  but  before  he  had  time  to 
alight  the  train  was  suddenly  and  violently  started 
in  a  backward  direction,  prostrating  and  injuring 
him,  he  could  maintain  an  action  as  well  as  if  the 
train  had  been  started  in  a  forward  direction. 

During  the  prevalence  of  human  bondage  in  this 
country,  courts  were  nmch  more  aj)t  to  regard  the 
"rights"  of  the  master  in  his  bi-furcated  property, 
than  the  wrongs  of  the  slave.  So  tender  was  the 
law  of  the  claims  of  the  slave  owner,  that  they  were 
even  preferred,  in  South  Carolina,  to  those  of  a 
whisky- vendor.  In  Berkley  v.  Harrison  (1  Strobh. 
525),  a  shopkeeper,  in  violation  of  the  statute  on 
that  subject,  sold  ardent  spirits,  to  wit:  whisky,    to 


94  NEGLIGENCE. 

the  plaintiff's  slave,  by  means  whereof  the  slave  be- 
came intoxicated,  lay  out  all  night,  and  died.  The 
court,  in  giving  judgment  for  the  plaintiff,  said 
"the  drinking  and  intoxication  of  the  slave  were 
the  natural  and  probable  consequences  of  selling 
liquor  to  him;  the  lying  out  all  night  was  the  im- 
mediate effects  of  the  intoxication;  and  the  two 
produced  death."  One  cannot  avoid  admiring  the 
superior  humanity  and  wisdom  of  the  South  Caroli- 
nian laws,  which  gave  the  master  the  monopoly  of 
drunkenness.  In  Sparta  a  father  would  make  his 
slaves  drunk  as  a  warning  spectacle  to  his  sons,  but 
I  suppose  in  South  Carolina  the  white  furnished  the 
warning  and  the  black  derived  the  lesson.  Again, 
in  Wright  v.  Gray  (3  Bay,  464),  the  defendant,  be- 
ing concerned  in  a  horse  race,  persuaded  a  negro 
boy  belonging  to  the  plaintiff,  without  the  master's 
permission,  to  ride  the  defendant's  horse,  which, 
during  the  race,  threw  the  boy  against  a  tree  and 
killed  him.  A  verdict  for  the  plaintiff  was  sus- 
tained on  appeal,  on  the  ground  that  one  who  oflQ- 
ciously  interferes  with  another's  proiDerty,  without 
his  permission,  is  liable  for  all  the  consequences, 
whether  intentional  or  not.  If  the  horse  had  bolted 
into  a  free  State  with  the  boy,  an  interesting  ques- 
tion might  have  arisen  whether  the  defendant 
would  have  been  liable  for  the  consequent  loss  of 
the  boy.  In  Priester  v.  Angley  (5  Eich.  Law,  44), 
the  defendant  permitted  his  infant  son  to  take  a 
gun  to  drive  slaves  from  the  defendant's  cane  patch, 
but  cautioned  him  to  fire  so  as  not  to  hit  any  one. 
The  son  fired  and  scared  one  darkey  so  that  he  was 
of  no  more  use  to  his  master,  except  for  his  hide 


NEGLIGENCE.  95 

and  tallow.  There  was  evidence  that  the  son  did 
not  intend  to  take  the  negro's  life.  The  defendant 
was  held  responsible  for  the  value  of  the  "■'critter." 

If  it  were  not  for  the  following  decision  and  one 
or  two  others  similar  to  it,  a  new  maxim  might  be 
introduced  in  the  law  —  let  the  lender  beware. 
The  doctrine  to  which  Ave  refer  is  established  in 
Shields  v.  Edinburgh,  etc.,  R.  Co.  (Hay,  254).  The 
plaintiff  was  injured  in  coiisequence  of  being 
knocked  down  by  a  van  belonging  to  the  defend- 
ants, and  which  was  lent  by  them  to  A.,  Avho  at- 
tached his  own  horse  to  it,  and  provided  a  driver. 
Held,  that  as  the  horse  was  not  the  property,  and 
strictly  speaking,  the  driver  was  not  the  servant,  of 
the  defendants,  but  of  A.,  the  defendants  were 
not  liable.  If  such  an  action  had  succeeded  it 
should  have  been  followed  by  a  decree  making  the 
wagon  a  deodand.  But  those  who  lend  guns  or 
horses  must  be  careful  not  to  be  present  Avhen  they 
kick  or  do  harm.  In  Bishop  v.  Ely  (9  Johns,  294), 
where  A.  lent  a  wagon  to  B.  and  C,  who  each  fur- 
nished a  horse,  and  then,  at  their  invitation,  A. 
rode  with  them,  B.  driving,  it  was  held  that  all 
three  were  jointly  liable  for  the  negligence  of  B.  in 
driving  too  fast. 

As  the  courts  have  the  matter  in  their  own  hands, 
we  are  not  surprised  to  learn,  that  in  regard  to  neg- 
ligence of  attorneys  and  counselors,  the  rule  is  that 
they  are  liable  only  for  clear  and  material  negli- 
gence and  evident  incompetency.  And  after  all, 
this  is  not  unreasonable.  It  is  so  difficult  to  find 
out  what  the  law  is  on  any  given  point,  or,  having 
ascertained  what  it  is,  to  conjecture  what  it  may  be 


96  NEGLIGENCE. 

at  the  end  of  any  particular  suit,  that  any  other 
rule  would  be  a  hardship.  Therefore  we  rely  on 
the  golden  words  of  the  court  in  Montriou  v.  Jeffries 
(3  Carr.  and  P.  113),  "No  attorney  is  bound  to 
know  all  the  law.  God  forbid  that  it  should  be  im- 
agined that  an  attorney,  or  a  counsel,  or  even  a 
judge,  is  bound  to  know  all  the  law."  But  this 
branch  of  the  subject  is  of  little  importance.  Few 
lawyers  are  pecuniarily  able  to  answer  for  their  neg- 
ligence, and  to  sue  one  would  necessarily  involve 
the  patronage  of  another.  It  is  better  to  "bear 
those  ills  we  have,  than  fly  to  others  that  we  know 
not  of,"  especially  when  they  may  include  "the 
law's  delay." 


PLEADIXa    BEFORE    THE    CODE.  97 


PLEADING  BEFORE  THE  CODE.=^ 


"  I  think  the  Code  contains,  as  I  best  recollect  at 
this  moment,  only  ono  thing  which  can  be  called 
new  in  principle,  and  this  is  an  attempt  at  an  abso- 
lute impossibility  in  prescribing  the  rule  of  plead- 
ing. It  declares  in  substance  and  effect  that  you 
shall  not  plead,  as  in  the  old  system,  the  conclusions 
in  law  or  in  reason  from  the  facts  of  the  case,  and 
at  the  same  time  it  prohibits  you  from  stating  or 
detailing  the  evidence  merely  on  which  you  rely. 
You  are  required  to  state  the  "facts"  which  that 
evidence  conduces  to  prove.  Here,  under  the  name 
of  "facts,"  we  find  some  things  require  to  be  stated 
which  are  neither  in  the  vulgar  sense  of  the  word 
the  mere  fact,  or  transaction,  or  event,  which  did 
occur  and  can  be  proven  by  direct  evidence,  and  are 
not  the  general,  rational  or  legal  conclusions  from 
such  fact,  transaction  or  event. 

"Now,  according  to  my  conception,  it  requires 
somebody  much  more  wise  and  more  subtle  than 

*  "Pleadings,"  in  a  legal  sense,  are  not  the  speeches  of  counsel  in 
court,  but  the  written  allegations  of  the  parties,  plaintiff  and  defend- 
ant, stating  the  cause  of  action  on  the  one  hand,  and  the  defense  on 
the  other,  and  forming  the  "  issue  "  to  be  tried.  A  "  demurrer  "  is  a 
pleading  interposed  in  answer  to  another  pleading,  and  admitting  the 
truth  of  the  allegations  in  the  pleading  demurred  to,  but  insisting 
that  those  aUegations  form  no  cause  of  action  or  defense,  as  the  case 
may  be.  The  New  York  Code  is  a  body  of  statutes  enacted  in  1848, 
regulating  the  practice  of  our  couvts,  and  effecting  many  radical 
changes. 

to 


98       PLEADING  BEFORE  THE  CODE. 

myself,  or  any  special  pleader  I  have  ever  been  ac- 
quainted with,  to  define  or  find  out  what  it  is  that 
should  be  stated  in  a  regular  pleading  drawn  in 
compliance  with  this  requisite  of  the  code.  I  am 
not  aware  that  any  one  has  ever  attempted  to  do  it. 
The  common  practice  in  this  State  is  to  tell  your 
story  precisely  as  your  client  tells  it  to  you,  just  as 
any  old  woman  in  trouble  for  the  first  time  would 
narrate  her  grievances,  and  to  annex  by  way  of 
schedules,  respectively  marked  A,  B,  C,  etc.,  copies 
of  any  papers  or  documents  that  you  may  imagine 
would  help  your  case.  This  is  most  emphatically  a 
fair  description  of  all  the  pleadings  Avhich  come 
from  the  office  of  the  chief  codifier  himself.  A  de- 
murrer to  any  pleading  under  the  code  is  a  very  dan- 
gerous step,  because  it  is  utterly  impossible  for  the 
keenest  investigator  to  determine  in  most  cases 
what  any  other  reader  than  himself  will  under- 
stand to  be  the  import  of  the  pleading  if  it  be  de- 
murred to. 

"  You  may  well  imagine  under  these  circum- 
stances, that  except  in  the  very  commonest  and 
very  simplest  of  cases,  there  are  no  precedents  which 
would  be  of  use  to  one  beginning  to  draw  pleadings 
under  the  code.  Its  idea  seems  to  be  that  every 
vulgar  ignoramus,  upon  reading  them,  will,  from 
their  conformity  to  his  own  helter-skelter  manner 
of  thinking  and  writing,  think  them  quite  sensible 
and  intelligible,  and  that  a  person  of  opposite  char- 
acter and  habits  shall  always  be  unable  to  compre- 
hend what  they  mean,  and  consequently  be  forced 
to  conclude  that  he  must  suspend  judgment  on 
their  merits  until  the  trial,  and  that  if  the  parties 


PLEADING    BEFORE    THE    CODE.  99 

then  make  out  a  case  or  a  defense,  the  pleadings 
may  tlien  and  there,  or  afterward,  be  amended,  as 
occasion  may  require. 

*'It  is  truly  laughable  to  one  conversant  with 
both  systems  to  see  the  blunders  into  which  lawyers 
of  great  ability,  who  have  come  to  the  bar  Avithin 
the  past  ten  or  fifteen  years,  sometimes  fall  in  fram- 
ing a  declaration,  plea,  or  subsequent  pleading  at 
common  law  in  the  circuit  court  of  the  United 
States." — [Letter  of  Hon.  C/ias.  0' Conor. 

I  had  supposed,  until  I  saw  the  above,  that  the  old 
rams  of  the  law  were  done  with  butting  at  the  code. 
One  very  able  and  conscientious  judge  went  un- 
timely to  his  grave  with  spite  at  the  code,  which  he 
used  to  vent  in  his  opinions,  until  it  was  evident 
that  he  was  a  monomaniac  on  the  subject.  But 
this  was  many  years  ago,  and  since  then  the  main 
features  of  the  code  have  been  copied  in  several 
other  States,  and  if  there  is  any  feature  which  has 
met  with  more  general  api^roval  than  another,  it  is 
that  which  Mr.  O'Conor  has  selected  for  animad- 
version above.  From  some  other  parts  of  his  letter, 
from  which  the  above  is  quoted,  I  strongly  suspect 
that  he  has  at  some  time  been  unfortunate  in  de- 
murring to  some  of  "the  pleadings  which  came 
from  the  oflBce  of  the  chief  codifier  himself."  To 
my  mind  the  highest  praise  Avhich  can  be  given  to 
the  code  is  contained  in  the  words  which  he  himself 
italicises.  Can  any  one  explain  why  the  time  of 
suitors,  courts  and  community  shall  be  consumed  in 
contests  about  forms  and  modes  of  expression,  which, 
after  they  are  decided,  leave  the  parties  just  where 
they  started  years  before?     Men  are  too  busy  and 


100  PLEADING    BEFORE    THE   CODE. 

too  much  in  earnest  in  the  nineteenth  century  for 
any  such  fooling.  It  was  well  enough  in  those  hal- 
cyon, respectable  and  conservative  days,  a  genera- 
tion ago,  when  Mr.  O'Conor  and  a  few  other  emi- 
nent gentlemen  monopolized  the  practice  of  the 
law,  because  pleading  was  so  precarious  and  diffi- 
cult. Justice  was  a  jealous  god,  and  was  deaf  to 
the  entreaties  of  her  suitors,  unless  they  prayed  ac- 
cording to  established  forms.  It  was  no  wonder 
that  Mr.  O'Conor,  et  id  omne  genus,  sigh  over  the 
departure  of  the  days  when  justice  depended  on 
pleading  more  than  proofs,  and  they  Avere  the  high 
priests  who  alone  knew  how  to  put  up  the  prayers. 
But,  if  I  remember  rightly,  demurring  was  always 
"a  dangerous  step."  Woe  be  to  the  priest  who  did 
not  pray  according  to  rule;  but  still  greater  woe  to 
the  other  priest,  who  objected  that  the  prayer  was 
not  in  the  proper  form,  if  it  turned  out  that  it  was! 
And  it  was  a  matter  of  delicacy  to  determine  how 
to  wind  up  the  prayer.  The  great  British  advocate, 
Mingay,  in  speaking  for  the  defendant  who  was 
sued  for  the  price  of  keeping  a  horse,  and  Avho  de- 
fended on  the  ground  that  the  fodder  was  of  poor 
quality,  said  to  the  jury:  "Gentlemen,  the  oats 
and  hay  were  unfit  to  eat,  and  naturally  the  horse 
demurred."  "He  should  have  gone  to  the  coun- 
try," responded  his  antagonist,  Erskine. 

If  any  thing  could  justify  the  vulgar  idea  that 
law  is  a  lie,  and  all  lawyers  are  liars,  the  common- 
law  system  of  pleading  would  do  it.  It  was  a  grand 
scheme  of  lies.  The  science  was  monopolized  by  a 
few  adroit  word-spinners.  The  most  skillful  pleader 
was  he  who  most  deceitfully  and  ingeniously  con- 


1 


PLEADING     BEFORE    THE    CODE.  101 

cealed  from  his  adversary,  until  the  moment  of 
trial,  all  suggestions  of  the  real  nature  of  the  action. 
If  the  cause  of  action  was  a  promissory  note,  he 
charged  that  the  defendant  was  indebted  to  him  for 
money  lent  and  advanced,  for  money  had  and  re- 
ceived, for  money  paid,  laid  out  and  expended,  for 
goods,  wares  and  merchandise  sold  and  delivered, 
for  work,  labor  and  services  done,  performed  and 
rendered,  and  every  thing  else  under  the  sun  except 
a  promissory  note.  And  so  the  wretched  defend- 
ant remained  in  dense  ignorance  of  what  was  to  pay 
until  he  came  into  court.  By-and-bye  this  state  of 
things  began  to  strike  legislators  and  jurists  as  in- 
convenient, not  to  say  unjust,  and  so  the  plaintiff 
was  ordered  to  append  to  his  declaration,  in  which 
he  told  all  the  aforesaid  lies,  a  notice  stating  the 
truth,  to  wit:  that  the  cause  of  action  was  a  prom- 
issory note;  or  rather,  that  on  the  trial  he  would 
offer  in  evidence  the  note,  the  real  cause  of  action, 
to  give  eflScacy  to  the  common  counts,  which  con- 
stituted the  lies.  Common  sense  suggested  the  in- 
quiry, if  the  notice  is  necessary  and  sufficient,  what 
is  the  use  of  the  lies?  But  we  had  told  the  lies  so 
long  and  so  often  that  we  loved  them  and  hated  to 
give  them  up.  They  were  part  of  the  great  science 
of  pleading,  and  to  be  able  to  tell  them  in  the  right 
form  was  a  feather  in  one's  cap. 

A  beautiful  outgrowth  of  this  system  was  the  doc- 
trine of  variance,  which  made  fatal  the  slightest 
variation  between  the  pleadings  and  the  proof. 
Brown  sued  Jones  in  slander  for  calling  him  a 
"  perjured,  lying  thief."  On  the  trial  it  turned  out 
that  the  words  actually  used  were  "  perjured  scoun- 


102  PLEADING    BEFORE    THE    CODE. 

drel  and  horse  thief."  This  was  a  variance,  and 
there  Avas  only  one  privilege  left  to  Brown,  and 
that  was  to  pay  Jones'  costs  and  get  out  of  court. 
The  doctrine  of  amendment,  about  which  Mr. 
O'Conor  growls,  was  no  part  of  our  consistent  sys- 
tem of  lying. 

Another  pleasant  feature  of  the  old  system  of 
pleading  was  its  impartiality.  The  plaintiff  had  no 
monopoly  of  lying.  The  defendant  might  lie,  too. 
He  might  set  up  as  many  defenses  as  the  ingenuity 
of  counsel  could  invent,  without  regard  to  their 
consistency,  and  he  sought  a  recompense  for  his 
ignorance  of  what  the  plaintiff  was  at,  by  keeping 
him  just  as  ignorant  of  the  real  nature  of  the  de- 
fense. The  object  of  pleadings,  it  will  be  borne  in 
mind,  was  ostensibly  all  this  time  to  inform  the 
court  of  the  issue  to  be  tried. 

When  we  came  into  a  court  of  conscience,  of 
course,  one  would  suj)pose  that  all  this  was  reme- 
died. That  was  the  principal  reason  for  having 
such  a  court  at  all — to  afford  a  refuge  in  certain 
cases  from  the  court  where  lying  held  sway.  But 
there  must  be  some  recompense  for  being  compelled 
to  state  the  truth,  theoretically,  and  what  was  it? 
Why,  lawyers  were  encouraged  to  make  the  plead- 
ings as  long  as  possible,  by  receiving  pay  in  propor- 
tion to  their  length.  And  so  expert  did  the  profes- 
sion become  in  the  pleasant  pursuit  of  money,  that 
the  pleadings  in  courts  of  chancery,  or  conscience, 
by  reason  of  their  prolixity,  grew  to  answer  nearly 
the  same  benign  purpose  as  those  in  courts  of  law, 
or  lying  —  L  e. ,  of  not  furnishing  any  hint  of  the 
real  issue. 


11 


PLEADING    BEFORE    THE   CODE.  103 

The  syllabus  of  Bloss  v.  ToUy  (2  Pick.  320),  de- 
cided in  1 824,  is  as  follows : 

"Simply  to  burn  one's  own  store  is  not  unlawful, 
and  the  words,  '  he  burnt  his  own  store,'  or  '  there 
is  no  doubt  in  my  mind  that  h6  burnt  his  own  store; 
he  would  not  have  got  his  goods  insured  if  he  had 
not  meant  to  burn  it; '  or  a  general  allegation  that 
the  defendant  charged  the  plaintiff  with  having 
willfully  and  maliciously  burnt  his  own  store,  will 
not  sustain  an  action  for  slander  without  a  collo- 
quium or  averment  setting  forth  such  circumstan- 
ces as  would  render  such  burning  unlawful;  and 
that  the  words  were  spoken  of  and  concerning  such 
circumstances;  and  the  want  of  such  colloquium  or 
averment  will  not  be  cured  by  an  inuendo." 

The  report  states  that  the  defendant's  counsel 
were  Mills,  Whiting  and  Dwight.  After  careful  and 
extended  inquiries  among  men  from  Berkshire 
county,  we  have  learned  that  these  were  very  dis- 
tinguished men  in  their  day,  and  we  have  no  doubt 
that  posterity,  or  at  least  that  portion  of  it  which 
shall  peruse  the  said  report,  will  hold  them  in  due 
reverence.  The  report  goes  on  to  state  that  the  dis- 
tinguished gentlemen  above  mentioned,  at  the  Sep- 
tember term,  1823,  moved  in  arrest  of  the  judgment 
obtained  by  the  plaintiff,  and  that  "Bryant,  for 
the  plaintiff,  furnished  the  court  in  vacation  with  a 
written  argument,"  etc.  Now,  this  Bryant,  we 
fear,  had  not  a  legal  mind,  and  instead  of  trying  to 
suppy  his  natural  deficiencies  by  studying  the  grand 
principles  of  common-law  pleadings,  he  was  much 
addicted  to  poetry.  Even  when  in  college,  at  the 
age  of  eighteen,  he  had  written  and  uttered  some 


104  PLEADING     BEFORE    THE    CODE. 

verses  which  he  called  Thanatopsis,  of  which  some 
of  our  readers  may  have  heard.  And  even  after  he 
had  been  some  time  in  the  profession,  he  allowed 
himself  to  be  instigated  by  this  unhallowed  passion 
for  poetry  to  write:    • 

"  Though  forced  to  drudge  for  the  dregs  of  men, 
And  scrawl  strange  words  with  the  barbarous  pen. 
And  mingle  among  the  jostling  crowd. 
Where  the  sons  of  strife  are  subtle  and  loud." 

The  consequence  of  all  this  was,  that  his  said  client, 
Bloss,  lost  his  case  through  his  attorney's  inca- 
pacity to  draw  a  common-law  declaration,  and  that 
attorney  was  condemned  to  hear  from  the  wise  and 
mild  Chief  Justice  Parker  such  words  as  these:  "  It 
is  with  great  regret,  and  not  without  much  labor 
and  research  to  avoid  this  result,  that  we  are  obliged 
to  arrest  the  judgment  in  this  case  for  want  of  a 
sufficient  count  to  support  the  verdict.  *  *  * 
If  the  plaintiff  has  sustained  a  serious  injury,  an- 
other action  may  give  him  indemnity.  In  a  matter 
of  technical  law,  the  rule  is  of  more  consequence 
than  the  reason  of  it;  and  however  we  may  lament 
the  lost  labor  and  expense  of  the  suit,  we  find  our- 
selves wholly  unable  to  prevent  it,"  No  wonder 
the  attorney  was  ashamed  to  face  the  court  with  an 
oral  argument,  but  sent  it  in  that  underhand  man- 
ner, "  in  vacation,"  and  in  writing.  How  that  un- 
fortunate young  man  must  have  felt,  and  how  he 
must  feel  now,  at  the  age  of  seventy-eight,  when  he 
reflects,  as  he  must  inevitably  reflect,  that,  instead 
of  occupying  the  proud  eminence  of  a  man  who 
knew  how  to  draw  a  common-law  declaration  —  of 
such    men    as    Mills,   Whiting    and — (what's-his- 


PLEADING    BEFORE    THE    CODE.  105 

name?) — Dwight,  he  must  go  down  to  posterity  as 
William  Cullen  Bryant  —  nothing  but  the  greatest 
of  American  poets,  and  tenant  of  the  highest  niche 
in  American  general  letters.  We  would  say  naught 
to  render  the  old  man's  last  years  uneasy,  but  we 
would  simply  ask,  what  recompense  can  it  be  for 
these  lost  opportunities  that  he  can  read  his  name 
in  the  biographical  dictionaries,  and  count  his  for- 
eign honorary  titles  by  the  dozen?  We  dare  say,  if 
he  could  reflect  that  he  got  that  declaration  right, 
he  would  gladly  give  up  all  the  transitory  honor  of 
having  made  the  best  translation  of  those  foolish 
old  ballads  of  Homer.  Our  profession  indeed  owe 
Berkshire  county  a  grudge,  for  not  content  with 
having  produced  this  sneerer  at  our  sublime  call- 
ing, this  reprehensible  locality*  has  given  birth 
to  another  and  more  dangerous  person,  who, 
being  himself  a  lawyer,  has  had  the  audacity,  at 
one  fell  swoop,  to  abolish  those  elevating,  those 
subtle,  those  humanizing,  those  refining,  those 
highly  necessary  principles  of  common-law  pleading 
on  which  our  institutions  were  founded,  and  which 
the  dreaming  Bryant  hadn't  the  intellect  to  com- 
prehend, and  to  introduce  in  their  place  a  system 
under  which  it  can  no  longer  be  said,  in  the  golden 
words  of  Chief  Justice  Parker,  "  the  rule  is  of  more 
consequence  than  the  reason  of  it."  Surely  the 
ways  of  Providence  are  mysterious.  Bryant,  thou 
art  avenged! 

Such,  in  brief,  and  as  I  believe  without  exaggera- 
tion, was  the  Paradise  from  which  Mr.  Field  and 

*  Berkshire  county,  Massachusetts,  is  the  birthplace  of  David  Dudley 
Field,  the  chief  codifler  of  New  York. 

14 


106  PLEADING    BEFORE    THE    CODE. 

those  other  mistaken  reformers  so  ruthlessly  ejected 
Mr.  O'Conor,  Judge  Barculo,  and  the  rest  of  the 
proficients  in  the  difficult  science  of  pleading.  And 
to  what  a  barren  and  dismal  waste  have  we  been 
turned  out!  Just  see:  the  complaint  must  contain 
"  a  plain  and  concise  statement  of  the  facts,  con- 
stituting a  cause  of  action,  without  unnecessary 
repetition."  The  answer,  in  addition  to  denials, 
may  set  up  counter-claims  "in  ordinary  and  concise 
language,  without  repetition."  The  plaintiff  may 
compel  a  sworn  answer,  by  yerifying  the  complaint. 
In  considering  pleadings  for  the  purpose  of  deter- 
mining their  effect,  they  shall  "be  liberally  con- 
strued, with  a  view  of  substantial  justice  between 
the  parties."  If  pleadings  "are  so  indefinite  or 
uncertain  that  the  precise  nature  of  the  charge  or 
defense  is  not  apparent,  the  court  may  require  them 
to  be  made  definite  or  certain  by  amendment."  No 
variance  between  pleadings  and  proof  is  material, 
"unless  it  actually  have  misled  the  adverse  party 
to  his  prejudice; "  and  even  then  "the  court  may 
order  the  pleading  to  be  amended,  upon  such  terms 
as  shall  be  just."  The  party  may  amend  his  own 
pleading  under  certain  circumstances  and  in  cer- 
tain particulars,  as  a  matter  of  course,  and  the 
court  may  always,  on  motion,  amend  the  pleading 
" in  furtherance  of  justice"  and  on  proper  terms. 
And  finally,  "the  court  shall,  in  every  stage  of  an 
action,  disregard  any  error  or  defect  in  the  plead- 
ings or  proceedings,  which  shall  not  affect  the  sub- 
stantial rights  of  the  adverse  party." 

Now,  of  course,  the  intricacy  of  such  a  system 
must  be  very  embarrassing  to  such  simple  and  in- 


PLEADING    BEFORE    THE   CODE.  107 

experienced  souls  as  Mr.  O'Conor,  trained  to  the 
simplicity  and  luminousness  and  intelligibility  of 
pleadings  under  the  old  system.  No  doubt  he 
misses  the  pleasant  excitement  and  suspense,  which, 
under  the  ancient  rule,  pervaded  the  mind  of  the 
practitioner,  until  he  had  steered  safely  past  all  the 
troublesome  rocks  which  beset  the  telling  of  his 
client's  story,  and  the  conforming  the  proof  to  it. 
But  he  is  too  modest  in  conceiving  that  "  it  requires 
somebody  much  more  wise  or  more  subtle  than  " 
himself  to  learu  to  draw  a  pleading  in  compliance 
with  the  rules  of  the  code. 

But  seriously,  it  is  to  my  mind  one  of  the  best 
features  of  the  code  that,  "except  in  the  very  com- 
monest and  very  simplest  of  cases,  there  are  no  pre- 
cedents which  would  be  of  use  to  one  beginning  to 
draw  pleadings  "  under  it.  Instead  of  precedents, 
it  is  truth  that  is  required  under  the  code.  A  form 
that  fits  one  case  must  necessarily  be  false  when  ap- 
plied to  most  others.  '^  Circumstances  alter  cases," 
and  a  concise  statement  of  the  facts  in  each  case 
will  be  more  promotive  of  the  development  of  truth 
than  a  Procrustean  precedent  for  all  cases.  We 
really  hope  that  Mr.  O'Conor  will  be  more  successful 
in  his  search  for  precedents  than  that  lawyer  and  in- 
veterate wag,  who  rushed  into  an  attorney's  office 
during  the  sitting  of  the  circuit,  apparently  very 
much  out  of  breath,  and  asked  his  friend  if  he  could 
lend  him  "a  blank  form  of  speech  for  plaintiff's  at- 
torney in  an  action  of  assault  and  battery,  where  the 
defendant  had  kicked  the  plaintiff  on  the  dock." 

In  conclusion,  the  code  seems  likely  to  live  and 
thrive.     The  "  conflict  in  opinion  "  as  to  its  merits 


108 


PLEADING    BEFORE    THE    CODE, 


is  confined  to  the  imagination  of  Mr.  O'Conor,  in 
my  opinion,  and  those  judges  who  have  "commit- 
ted themselves  "to  "a  lack  of  respect  for  its  design, 
execution  and  effect,"  must  belong  to  that  class,  of 
one  of  whom  Sam.  Weller  said  that  "  he  commits 
himself  twice  as  often  as  he  commits  any  one  else." 
They  have  descended  from  the  bench  never  to  re- 
turn, and  all  the  people  say  amen. 


PLEADING   UNDER    THE   CODE.  109 


PLEADING  UNDER  THE  CODE. 


The  pretext  for  this  article  will  be  found  m  sec- 
tion 142  of  the  New  York  Code  of  Procedure, 
which  enacts  that  the  complaint  shall  contain  a 
plain  and  concise  statement  of  the  facts  constitut- 
ing the  cause  of  action,  without  unnecessary  repeti- 
tion. 

One  peculiarity  of  the  common-law  rule  of  plead- 
ing, claimed  by  its  adherents  to  be  a  virtue,  was  its 
uniformity.  To  be  sure,  its  uniformity  reminds 
one  of  the  man  who  said  his  wife  had  a  remarkably 
even  temper  —  always  cross.  For  each  kind  of  ac- 
tion there  was  a  certain  prescribed  lie,  or,  rather,  a 
class  of  prescribed  lies,  and  all  a  party  had  to  do  to 
interj)ret  any  pleading  was  to  recall  the  form  of  lie, 
or  class  of  lies,  prescribed  for  the  particular  case, 
and  guess  at  the  truth.  For  instance,  to  give  an 
idea  of  the  absurdity,  let  us  suppose  that  the  cause 
of  action  is  a  promissory  note,  and  that  the  rule  of 
pleading  should  dictate  that  the  declaration  in  such 
cases  should  count  upon  an  assault  and  battery;  it 
is  perfectly  simple,  one  has  only  to  remember  that 
assault  and  battery  means  promissory  note,  and  the 
thing  is  done.  It  was  something  like  the  science  of 
mnemonics,  by  which  all  one  had  to  do  to  remem- 
ber any  particular  fact,  or  number  of  facts,  was  to 
remember  a  certain  other  fact,  or  number  of  facts, 


110  PLEADING    UNDER    THE    CODE. 

haying  no  apparent  connection  with  the  principal 
fact,  and  consequently,  a  great  deal  more  difficult 
to  be  remembered.  It  was  perfectly  surprising  how 
many  names  or  dates  one  could  be  taught  to  remem- 
ber by  having  memory  enough  to  remember  a  cor- 
responding number  of  things,  which  might  suggest 
the  former.  Now,  they  say  the  code  has  abrogated 
this  uniform  and  convenient  method  of  getting  at 
the  issue,  and  substituted  a  very  uncertain  and  in- 
definite rule,  to  wit:  that  the  complaint  shall  state 
the  facts  constituting  the  cause  of  action.  No 
two  cases  are  alike,  say  they,  and  how  is  one  to 
know  what  anybody  else  would  call  the  facts?  To 
those  who  were  educated  under  the  old  practice 
this  was  at  first  quite  troublesome.  They  were  so 
accustomed  to  lying,  under  the  old  system,  that 
they  found  it  difficult  to  state  the  facts  under  the 
new.  They  yearned  for  the  old  lies,  labor-saving, 
even  if  deceptive.  One  trouble  complained  of  un- 
der the  new  rule  is  said  to  consist  in  drawing  the 
line  properly  between  the  statement  of  the  facts, 
and  the  statement  of  the  evidence  tending  to  estab- 
lish those  facts,  or  in  distinguishing  between  a 
statement  of  facts  and  the  statement  of  a  legal  con- 
clusion. This  is  a  stumbling  block  not  only  to  the 
admirers  of  the  old  school,  but  to  many  who  prefer 
the  new  state  of  things,  and  have  scarcely  acquired 
a  reason  for  the  faith  that  is  in  them. 

It  must  be  admitted  that  there  are  some  cases  of 
difficulty  under  this  theory  of  pleading,  but  they 
are  very  few.  Generally,  the  rule  is  easy  of  appli- 
cation. So  easy  is  it,  in  a  great  majority  of  instan- 
ces, that  it  is  really  laughable  to  see  how  many  intelli- 


PLEADIJSTG    UNDER    THE    CODE.  Ill 

gent  men  go  astray  from  it.  Thus,  although  it  is 
of  course  competent  to  show,  as  part  of  the  resgestcD, 
that,  during  the  commission  of  an  assault  and  bat- 
tery, the  defendant  used  violent,  threatening  and 
profane  language,  yet  it  is  hardly  necessary  or 
proper  to  allege  it  in  the  complaint,  as  was  once 
done  in  a  case  within  my  knowledge.  "  A  lick  with 
the  rough  side  of  the  tongue  "  is  not  a  part  of  the 
assault  and  battery  for  which  damages  will  be 
awarded. 

As  an  example  of  an  extraordinary  statement  of 
facts  in  the  complaint,  take  the  following:  The  ac- 
tion was  brought  by  a  sister,  to  obtain  a  decree  set- 
ting aside  her  deceased  brother's  marriagie,  on  the 
ground  that  he  was  a  lunatic,  and  under  the  charge 
of  a  committee,  at  the  time  he  was  married.  The 
complaint  charged  the  facts  of  the  marriage  as  fol- 
lows: "One  P.  Q.,  who  is  a  lawyer  by  profession, 
and  a  first  cousin  of  A.  B." — the  lunatic — "and 
at  the  time,  possessed  of  great  power  of  control  and 
influence  over  the  said  A.  B.,  from  improper  de- 
signs him  thereunto  moving,  ojDerating  on  the  ad- 
vantage of  his  said  power,  control  and  influence 
over  the  said  A.  B.,  shortly  before,  and  in  close 
connection  with,  the  time  of  said  marriage,  took, 
carried  and  accompanied  the  said  A.  B.,  in  and 
with  a  douhle-liorse  conveyance,  belonging  to  the  fa- 
ther of  the  said  P.  Q.,  to aforesaid,  and  to 

the  residence  of  one  C.  D.,  a  sister  of  the  said  P. 
Q.,  and  who  kept  a  boarding-house  there  at  the 
time,  which  was  at  a  point  distant  about  seven 
miles  from  the  residence  of  the  said  A.  B.,  in  the 
town  of ,  aforesaid,  the  said  defendant " —  the 


112  PLEADIXG    L'XDER    THE    CODE, 

widow — "then  residing  at  her  father's  house,  ou 

street,  in  the  city  of ,  to  which  house, 

soon  after  their  arrival  at ,  as  aforesaid,  the 

said  P.  Q.,  accompanied  by  the  said  A.  B.,  went 
after  the  said  defendant,  and  brought  her  to  the 
boarding-house  of  the  said  C.  D.,  at ,  afore- 
said, where  the  marriage  service  hereinbefore  men- 
tioned was  performed  by  a  man  reputed  to  be  a 
Methodist  minister" — there  was  some  method  in 
A.  B.'s  madness,  it  seems — "  as  this  plaintiff  is  in- 
formed and  believes,  named  X.  Y.,  but  whose  loca- 
tion now,  or,  if  living  or  dead,  is  entirely  unknown 
to  this  plaintiff."  (The  law  does  not  require  im- 
possibilities, and  consequently  would  not  demand 
keeping  track  of  a  Methodist  minister's  location  in 
this  life,  to  say  nothing  of  a  future  state.)  The 
answer  to  this  remarkable  complaint  is  worth  quot- 
ing in  one  particular:  "  The  defendant  admits  that, 
when  she  and  said  A.  B.  went  to  be  married,  they 

rode  in  a  double  wagon  from to ,  but 

she  avers  that  she  did  not  know  then,  and  is  still 
unaware,  that  there  was  any  wrong  or  illegality  in 
riding,  to  be  married,  in  a  double  wagon."  Prob- 
ably the  draftsman  of  this  complaint  thought  that 
a  stronger  inference  could  be  drawn  against  the 
validity  of  the  marriage,  if  he  hitched  a  double  team 
to  it. 

Perhaps  as  good  an  example  of  pleading  the  evi- 
dence instead  of  the  facts,  as  can  be  found  in  fic- 
tion, is  in  Dame  Quiclcly's  accusation  of  Falstaff. 
The  fact  which  the  hostess  meant  to  aver  Avas  that 
Jack  had  promised  to  marry  her,  but  in  her  garru- 
lous and  detailed  statement  it  grew"  into  these  pro- 


PLEADING   Ul^DER    THE   CODE.  113 

portions:  "  Thou  didst  swear  to  me,  upon  a  parcel- 
gilt  goblet,  sitting  in  my  Dolphin  chamber,  at  the 
round  table,  by  a  sea-coal  fire,  upon  Wednesday, 
in  Whitsun  week,  when  the  prince  broke  thy  head 
for  liking  his  father  to  a  singing  man  of  Windsor; 
thou  didst  swear  to  me  then,  as  I  was  washing  thy 
wound,  to  marry  me,  and  make  me  my  lady  thy 
wife;  Canst  thou  deny  it?  Did  not  good  wife 
Keech,  the  butcher's  wife,  come  in  then,  and  call 
me  gossip  Quickly?  coming  in  to  borrow  a  mess  of 
vinegar;  telling  us  she  had  a  good  dish  of  prawns; 
whereby  thou  didst  desire  to  eat  some;  whereby  I 
told  thee  they  were  ill  for  a  green  wound?  And 
didst  thou  not,  when  she  was  gone  down  stairs,  de- 
sire me  to  be  no  more  so  familiarity  with  such  poor 
people;  saying  that  ere  long  they  should  call  me 
madam?  And  didst  thou  not  kiss  me,  and  bid  me 
fetch  thee  thirty  shillings?  I  jiut  thee  now  to  thy 
book  oath;  deny  it,  if  thou  canst."  It  has  been 
conjectured  that  Shakespeare  was,  at  some  period 
of  his  life,  a  law  clerk,  and  Lord  Campbell  summed 
up  the  evidence  on  the  question  in  a  pamphlet.  If 
his  lordship  had  been  acquainted  with  the  early 
days  of  our  code,  he  would  have  admitted,  that  even 
if  the  great  dramatist  had  never  drawn  a  bill  in 
chancery,  he  had  at  least  anticipated  the  scope  and 
form  of  many  of  the  complaints  under  that  much- 
abused  and  hardly-understood  body  of  laws  which 
regulates  our  practice. 

The  pathetic  and  rhetorical  flights  of  eloquence 

are  not  impossible  in  a  complaint  under  the  code. 

In  an  action  for  negligence  that  once  came  under 

my  notice,  the  plaintiff  described  the  result  of  the 

15 


114  PLEADIXG    UNDEE    THE    CODE, 

injuries  as  follows:  "  Thereby  rendering  her,  as  she 
the  plaintiff  is  informed  and  believes,  forever  una- 
ble to  work,  and  precluding  her  from  gaining  a 
livelihood,  and  from  all  the  benefits  and  enjoyments 
in  life,  to  which  she,  this  plaintiff,  in  common  with 
each  and  every  member  of  the  human  race,  is  an 
heir  and  an  inheritor."  To  which  the  heartless  de- 
fendants answered  that  they  had  no  knowledge  or 
information  sufficient  to  form  a  belief,  "as  to 
whether  she  is  an  heir  and  inheritor  of  the  benefits 
and  enjoyments  of  life,  or  any  of  them,  and  demand 
that  in  respect  to  the  same  she  trace  her  pedigree 
and  prove  her  title." 

I  had  supposed  until  T  saw  the  foregoing  that 
pathos  and  eloquence  in  pleading  had  been  ex- 
hausted before  the  code  in  the  case  of  Barron  v. 
Ricliard  (3  Edw.  96).  This  was  a  suit  to  restrain 
the  defendant  from  using  a  coal  yard,  under  a  cov- 
enant in  a  deed  not  to  carry  on  or  permit  any  trade 
or  business  offensive  to  the  neighboring  inhabitants. 
The  bill  contained  the  following  ornate  passages: 
*'In  which  during  several  successive  months  last 
past  they  have  daily  received  and  still  continue  to 
receive  coal  of  divers  and  many  sorts;  and  to  break 
it  up  and  screen  or  sift  the  coal  so  broken,  and 
separate  the  same  from  the  dust;  and  they  have 
there  sold  and  continue  to  sell  such  coal  and  load 
it  into  carts,  and  to  carry  it  away,  and  to  conduct 
the  business  with  all  the  ordinary  circumstances  and 
practices  usual  in  such  business,  and  to  occasion 
large  quantities  of  the  black,  filthy,  volatile,  offen- 
sive dust  and  smut,  usually  incident  to  a  coal  yard, 
where  much  business  is  done,  to  rise  on  the  air  and 


PLEADING    UNDER    THE    CODE,  115 

to  be  diffused  around  by  the  wind  and  into  the 
premises  of  the  neighboring  inhabitants;  and  in 
spite  of  all  the  care  which  the  neighbors  can  be- 
stow, such  coal  dust  and  smut  will  settle  on  their 
walks,  on  their  green  sward,  on  their  fragrant 
plants  and  flowers,  beclouding  the  brightness  and 
beauty  which  God  has  given  to  make  them  pleasant 
to  the  eye  and  cheering  to  the  heart  of  man.  They 
settle  too  on  the  neighbors'  steps,  thresholds  and 
windows;  and  enter  into  their  out-houses,  their 
dwellings,  their  carpets,  their  cups,  their  kneading- 
troughs,  their  beds,  their  bosoms,  and  their  lungs; 
discolor  their  linen  and  their  otherwise  stainless 
raiment  and  robes  of  beauty  and  comfort,  deface 
their  goodly  furniture,  blacken,  besmear  and  injure 
every  object  of  utility,  beauty  or  taste,  and  are 
thus  offensive  and  injurious  to  all  the  neighbors 
who  have  regard  for  decency  and  cleanliness,  so  es- 
sential to  the  health  and  happiness  of  society,  and 
by  reason  of  the  immediate  proximity  of  your  com- 
plainant they  are  to  him  peculiarly  offensive  and 
injurious."  The  defendants  demurred,  but  the  vice- 
chancellor's  sympathies  were  so  wrought  upon  by 
this  touching  statement,  that  he  held  the  bill  good. 
On  appeal  he  was  sustained  by  the  chancellor,  who 
observed:  ''The  allegation  in  the  bill  on  this  sub- 
ject, though  it  is  a  little  poetical,  cannot  be  consid- 
ered a  mere  poetic  fiction,  as  it  is  sworn  to  by  the 
complainant  and  is  admitted  by  the  demurrer. 
Making  all  due  allowance  for  the  coloring  which 
the  pleader  has  given  to  this  naturally  dark  picture, 
it  is  perfectly  certain  that  this  keeping  of  a  coal 
yard  upon  any  of  those  lots  is  a  business  offensive 


116  PLEADIISTG    UN"DER    THE    CODE. 

to  the  neighboring  inhabitants,  according  to  the 
spirit  and  intent  of  these  restrictive  enactments." 

Another  troublesome  feature  of  this  requirement 
of  the  code  is,  that  the  facts  shall  be  stated  in  a 
plain  and  concise  manner,  without  unnecessary 
repetition.  It  would  be  sad,  indeed,  if  justice  de- 
pended upon  the  strength  or  copiousness  of  a  plead- 
er's language.  The  office  of  pleadings  is  not  to 
scare,  confound  or  overwhelm  the  adverse  party. 
It  may  be  true,  as  Napoleon  said,  that  Providence 
is  on  the  side  of  the  heaviest  battalions,  but  justice 
is  not  necessarily  on  the  side  whose  lawyer  has  the 
gi'eatest  command  of  synonyms.  Words  are  cheap. 
Those  who  have  the  least  to  say,  or  are  uncertain 
how  to  say  it,  generally  have  the  most  of  them. 
Here  is  the  difficulty  of  the  rule  of  the  code;  it  pre- 
supposes that  the  pleader  knows  exactly  what  he 
wants.  Now,  when  we  were  among  the  leeks  and 
cucumbers  of  the  Egypt  of  pleading  at  common 
law,  this  was  not  so  material.  But  granting  that 
the  pleader  knows  what  he  wants,  how  hard  it  seems 
to  be  for  him  to  call  a  spade  a  spade.  He  seems  to 
be  continually  laboring  under  the  delusion  that  if 
he  calls  things  by  their  right  names  something  aw- 
ful will  happen;  that  he  is  wandering  about  the 
^temple  of  justice  in  a  state  of  enchantment,  being 
bound  to  flank  every  fact  by  verbal  circumlocution, 
for  fear  the  use  of  a  common  word  or  a  direct  and 
simple  phrase  will  wake  him  up,  and  tumble  the 
temple  about  his  head.  He  is  possessed  by  the  de- 
mon having  charge  of  the  "  long- tailed  words  end- 
ing in  osity  and  ation."  And  how  he  loves  to  accu- 
mulate—  to  add  to  each  succeeding  allegation  all 


PLEADING    UJS'^DER    THE    CODE.  117 

that  went  before.  Many  pleadings  are  apparently 
drawn  in  the  idea  that  every  allegation  is  forgotten 
oj  loses  its  virtue  as  soon  as  read,  and  so  the  pleader 
rolls  along  his  snow-ball  of  words,  growing  bigger 
and  bigger  and  more  unwieldy  and  shapeless  to  the 
end.  It  is  like  "the  house  that  Jack  built; "  "  this 
is  the  cow  with  the  crumpled  horn,"  being  utterly 
ineffective,  unless  connected  with  the  preceding  al- 
legations, "that  tossed  the  dog,  that  worried  the 
cat,"  etc.  As  the  judge  in  Racine  says  of  the  ad- 
vocate: 

*'  To  repeat  the  same  thing  twenty  times  he  prefers  by  far, 
Than  once  to  abridge." 

It  is  quite  fortunate  for  the  reputation  of  our 
profession  among  authors,  that  the  world  do  not 
see  our  pleadings.  If  they  were  public,  Whittier 
might  speak  of  "  weary  lawyers  with  endless  pens," 
as  well  as  "tongues."  Eeally,  the  mass  of  people 
have  no  idea  of  our  industry.  The  Pyramids,  the 
Colossus  of  Rhodes,  the  Simplon  road,  are  well 
enough  in  their  way,  but  if  you  want  to  get  an  ade- 
quate idea  of  the  industry,  the  ingenuity,  and  the 
perseverance  of  man,  read  a  law-pleading.  The 
Cretan  labyrinth  is  not  so  involved;  the  Sphynx  is 
not  so  mysterious;  like  a  suspension  bridge,  its 
middle  rests  on  nothing,  but  it  is  continuous  and 
self-sustaining;  take  an  allegation  out  of  the  center, 
although  it  is  just  like  a  dozen  others  preceding  it, 
and  down  goes  the  structure.  Reading  one  of 
these  pleadings  is  like  crawling  through  a  long  and 
narrow  tube  —  you  can't  turn  around;  but,  having 
once  started,  you  must  go  through  to  the  other  end. 


118  PLEADING    UNDER    THE    CODE. 

or  else  back  out.  Of  course,  all  this  is  very  fine, 
but  it  is  not  law;  c^ed  magnifique,  mats  ce  n'est  pas 
guerre.  A  man  may  develop  a  great  amount  of 
muscle  in  endeavoring  to  lift  himself  by  his  boot- 
straps, but  the  experiment  is  always  a  failure,  and 
answers  no  useful  purpose.  So  a  man  may,  even 
under  the  code,  get  a  great  reputation  as  a  pleader, 
by  drawing  interminable  pleadings  that  bother  the 
other  side  very  much,  but,  after  all,  don't  help  his 
side  on  a  bit.  It  is  no  wonder  that  Mr.  O'Conor, 
driven  to  desperation  by  such  pleadings,  should  say 
that  they  tell  the  client's  story,  "just  as  any  old 
woman  in  trouble  for  the  first  time  would  narrate 
her  grievances."  Not  that  Mr.  O'Conor  is  strictly 
accurate  in  this  harsh  reflection  ujDon  the  "old  wo- 
man." No  old  woman  of  my  acquaintance,  in 
describing  her  being  knocked  down  by  a  runaway 
horse,  has  ever  told  me  that  it  occurred  ''  while  she 
was  lawfully  and  carefully  walking  in,  upon  and 
across  a  certain  public  street,  highway  and  thor- 
oughfare;" or  in  narrating  an  assault  and  battery 
committed  on  her,  has  ever  informed  me  that 
the  defendant  struck  her  "a  great  many  violent 
blows  and  strokes  in  and  upon  various  parts  of  her 
body  and  person;"  or,  in  describing  its  effects,  hus 
ever  said  that  she  became  "  sick,  sore,  lame,  bruised 
and  disordered; "  or,  in  unfolding  the  particulars  of 
some  slanderous  accusation,  has  ever  intimated 
"  that  the  defendant,  unlawfully,  willfully  and  ma- 
liciously intending  and  contriving  to  injure  her  in 
her  good  name,  fame  and  credit,  and  bring  her  into 
discredit,  disrepute  and  infamy  among  her  friends, 
neighbors  and  acquaintances,  and  the  public,  spoke," 


PLEADIJiTG    UNDER    THE    CODE.  119 

etc.  I  do  not  number  any  such  rhetorical  and  tau- 
tological elderly  lady  on  my  list  of  clients,  and  I 
strongly  suspect  that  Mr.  O'Conor  never  fell  in  with 
her.  These  ingenious  flights  are  the  work  of  the 
Sinbads  of  the  legal  profession^  and  are  not  charge- 
able on  any  layman  or  laywoman.  They  are  the 
traditionary  remnants  of  that  ancient  system  of 
pleading  which  Mr.  O'Conor  reverences  and  mourns 
for.     The  poet  Moore  sings,  in  his  sweet  way: 

"  Like  a  vase  ia  whicli  roses  have  once  been  distilled. 
You  may  break,  you  may  shatter  the  vase,  if  you  will. 
But  the  scent  of  the  roses  will  cling  to  it  still." 

And  applying  this  idea  to  the  present  subject,  I 
should  sing: 

In  a  skull  if  tautology's  once  been  instilled, 

You  may  break  it  and  scatter  its  wig,  if  you  will. 

But  the  trick  of  tautology  clings  to  it  still. 

Now  we  have  dropped  into  poetry,  allow  me  to 
offer  a  little  original  poem  on  this  topic,  to  which, 
I  suspect,  Mr.  Longfellow  is  somewhat  indebted  foi 
some  famous  verses  of  his: 

A    PSALM   OF   LAW. 
JVhat  the  heart  of  the  Codifler  said  to  the  Pleader. 

Tell  me  not,  in  accents  croaking, 

''  Brevity's  an  empty  dream  ;  " 
What's  the  use,  with  verbal  cloaking. 

To  make  things  other  than  they  seem  ? 

Law  is  real ;  and  law's  expensive  ; 

Special  pleading 's  not  its  goal ; 
Rhetoric  and  tape  make  pensive 

Many  a  weary  client's  soul. 


I 


120  PLEADING    UNDER    THE    CODE. 

To  orate,  or  rouse  to  passion 

In  your  pleading  's  not  the  way ; 
State  your  case  in  simple  fashion, 

Let  the  judge  see  what's  to  pay. 

Law  is  long  and  time  is  fleeting, 

And  our  lips,  dull  habit's  slave. 
Are,  forgetting  fact,  repeating 

The  old  forms  our  fathers  gave. 

In  the  field  of  litigation, 

In  the  strife  of  good  and  evil. 
With  straightforward  allegation 

Tell  the  truth  and  shame  the  devil. 

Trust  not  Humphrey,  Barbour,  Chitty  ; 

Let  dead  cases  bury  their  dead ; 
With  stale  lies  'tis  surely  pity 

To  bother  any  judge's  head  ! 

Lives  of  pleaders  all  remind  us, 

We  may  make  our  lives  a  bore. 
And,  departing,  leave  behind  us 

Pleas  choke  full  of  useless  lore ;  — 

Precedents  that  perhaps  another, 

Doomed  by  cruel  fate  to  find, — 
Some  perplexed  and  anxious  brother, 

Reading,  shall  quite  lose  his  mind ! 

Sell  your  form  books  for  waste  paper ; 

State  the  facts  at  any  rate  ; 
Hesitating  how  to  shape  a 

Pleading  —  why,  abbreviate. 

But  as  there  is  an  alleviating  feature  of  almost 
every  evil,  so  the  repetitions  of  lawyers  argue  one 
virtue  at  least:  they  prove  that  our  profession  are 
willing  to  give  money's  worth  and  more,  for  we  are 
no  longer  paid  in  proportion  to  the  dimensions  of 


PLEADING    UNDER    THE    CODE.  121 

the  verbal  pyramids  which  we  erect.  We  are  will- 
ing: to  throw  in  a  few  hundred  extra  and  unneces- 
sary  adverbs  and  prepositions,  and  are  not'parsimo- 
nious  even  in  the  matter  of  nouns. 

Part  of  this  diffuseness  is  chargeable  on  our 
clients,  who  would  not  believe  us  half  so  wise  if  we 
were  only  half  as  long  in  our  pleading.  A  man  suf- 
fering from  tooth-ache  once  went  to  a  dentist  and 
asked  him  how  much  he  would  charge  for  extracting 
the  offending  member.  A  dollar,  was  the  reply. 
"Why,"  exclaimed  the  patient,  "Doctor  Jones 
only  charged  me  half  a  dollar  the  other  day,  and 
dragged  me  all  round  the  office,  too! "  Our  clients 
want  to  be  dragged  all  around  the  office,  and  all 
over  creation,  when  we  state  their  rights  and  wrongs 
on  paper. 

In  conclusion,  I  will  advert  to  a  topic,  which,  al- 
though not  strictly  covered  by  my  text,  is  yet  ger- 
mane to  it.  I  refer  to  the  phraseology  of  indict- 
ments. If  any  one  can  give  any  plausible  excuse 
for  the  use  of  nine-tenths  of  the  words  in  any  in- 
dictment, I  am  curious  to  know  it.  The  commis- 
sion of  crime  may  be  just  as  definitely  charged  in  a 
score  of  words  as  in  ten  score,  and  rather  more  defi- 
nitely, for  the  memory  is  not  taxed  in  the  former 
case.  It  has  always  seemed  to  me  inhuman  to  com- 
pel a  man  accused  of  a  capital  offense  to  listen  to  the 
reading  of  the  indictment.  It  is  an  added  bitter- 
ness to  death.  To  be  sure  it  consumes  time,  in 
which  circumstances  may  come  to  light  tending  to 
exculpate  the  accused.  A  refined  humanitarian, 
opposed  to  capital  punishment,  like  Horace  Greeley 
or  Mr.  Bergh,  might  act  on  this  idea,  and  contrive 
16 


122  PLEADING    UNDER    THE    CODE. 

an  indictment  so  long  that  its  reading  would  allow 
the  prisoner  to  die  a  natural  death.     The  sultan 
once   offered    immense    largess   and  honor  to  him 
Tvho  would  invent  a  story  without  end  —  untold 
wealth  and  the  hand  of  his  daughter  in  marriage. 
Any  one  was  at  liberty  to  contest  for  the  prize,  but 
in  case  of  failure,  the  bowstring  was  the  penalty. 
A  good  many  had  fallen  victims  to  their  greed  and 
their   short-windedness,  when  another    competitor 
presented  himself,  who,  I  have  reason  to  believe, 
was  an  old-time  English  special  pleader.     The  sul- 
tan seemed  to  be  moved  with  compassion,  and  asked 
him  if  he  had  duly  weighed  the  matter.     He  re- 
plied that  he  had.     Said  the  sultan,  "  one  fellow 
told  me  a  story  that  lasted  eleven  months;  do  you 
think  you  can  beat  him?"     The  brave  man  smiled 
superior;  the  preliminaries  were  settled;  so  Avas  the 
listener;  and  the  raconteur,  after  enumerating  the 
great  man's  titles,  which  occupied  some  hours,  thus 
commenced:     "Once  upon  a  time  there  was  a  king 
of  Egypt,  who,  anticii^ating  a  mighty  famine,  caused 
an  immense  granary  to  be  erected  and  filled  with 
wheat.     It  was  four  hundred  miles  square  and  five 
miles  high,  and  as  he  supposed,  hermetically  sealed. 
It  seems,  however,  that  a  hole,  near  the  top,  about 
as  large  as  a  pipestem,  had  been  overlooked.     The 
next   year    an   enormous  swarm  of    locusts   over- 
whelmed the  land.     They  discovered   the   orifice, 
just  large  enough  for  one  locust  to  enter  at  a  time, 
and  so  one  locust  crawled  in  and  flew  away  with  a 
kernel  of  wheat,  and  then  another  locust  crawled  in 
and  flew  away  with  another  kernel  of  wheat,  and 
then  another  locust  crawled  in  and  flew  away  with 


PLEADIlfG   UNDER    THE   CODE.  123 

another  kernel  of  wheat,  and  then  another  — '' 
*'Well,"  interrupted  the  sultan,  "I  suppose  the 
locusts  carried  off  all  the  wheat,  and  then  what?" 
"Why,"  answered  the  narrator,  'Hiow  can  I  tell 
your  ineffable  majesty  what  hapjDened  after  the 
wheat  was  all  gone,  until  I  first  describe  to  you  the 
process  of  its  abstraction?  I  will  endeavor  not  un- 
necessarily to  procrastinate,  but  really  these  details 
seem  essential.  They  may  consume  some  time. 
Considering  the  dimensions  of  the  magazine,  and 
the  amount  of  time  which  your  inextinguishable 
sanctity  is  willing  daily  to  bestow  on  your  worm  of  a 
narrator,  I  conscientiously  think  I  may  finish  this 
introductory  part  of  my  story  in  —  well,  say,  a  half 
a  century  —  and  then  we  shall  be  quite  fresh  and 
ready  to  enter  on  the  merits."  The  sultan  stroked 
his  beard,  groaned,  and  gave  it  up. 

Perhaps  in  these  days,  when  crime  seems  so 
frightfully  on  the  increase,  it  might  have  a  re- 
straining and  salutary  effect  to  abolish  capital  pun- 
ishment and  substitute  the  reading  of  the  indict- 
ment. The  prospect  of  such  a  fate  would  deter  the 
boldest  and  the  most  wicked.  In  aggravated  cases, 
where  methodical  lunatics  slay  men  who  they  fancy 
have  hurt  their  honor,  I  would  add  the  penalty  of 
listening  to  the  testimony  of  the  medical  witnesses 
on  the  subject  of  insanity.  If  the  offenders  were 
not  really  mad,  they  soon  would  be.  Possibly  this 
plan  would  be  open  to  Montesquieu's  objections 
against  punishments  unduly  severe.  Possibly  the 
offenders  would  take  themselves  off  to  evade  the 
penalty,  and  thus  save  the  State  all  trouble.  But 
there  is  a  sort  of  poetic  justice  in  the  idea  that 


124  PLEADING    UNDER    THE    CODE. 

pleases  me,  and  I  am  by  no  means  certain  that  I 
have  not  hit  on  the  universal  panacea  that  shall 
give  peace  and  safety  to  society. 

Having  now  strayed  to  the  customary  and  or- 
thodox distance  from  my  text,  I  will  dismiss  the 
meeting. 


I 


A  SOCIETY  FOR  THE  PREVENTION  OF  CRU- 
ELTY TO  LAWYERS. 


I  HAVE  latety  experienced  two  severe  shocks  upon 
my  nervous  system.  This  fact  has  led  me  to  con- 
template the  propriety  of  establishing  some  plan  of 
protection  for  lawyers.  Of  course,  it  is  conceded 
that,  as  a  class,  we  are  utterly  reprobate  and  given 
over,  and  that  when  we  die,  we  must,  nearly  all  of 
us,  go  to  the  bad.  However,  as  in  that  event,  we 
shall  unquestionably  be  accompanied  by  a  vast  ma- 
jority of  our  clients,  much  of  the  bitterness  of  that 
reflection  is  extracted.  But  it  is  cruel  for  a  person 
of  superior  genius  or  virtue  to  be  continually  crow- 
ing over  one  to  whom  Providence  has  been  less 
bounteous,  or  Satan  more  attentive.  It  is  naughty 
to  throw  stones  at  a  drunken  man.  And  so  it  is 
wrong  for  clergymen  and  other  sinless  and  nn- 
tempted  men,  to  twit  us  lawyers  with  our  fallen 
condition.  Now  my  idea  is,  that  we  ought  to  band 
together  for  self -protection  against  these  angelic  as- 
saults, or  that  the  State  ought  to  furnish  a  system 
of  police  for  our  defense.  I  am  usually  very  par- 
ticular, when  I  go  out  of  town  to  court,  to  conceal 
every  thing  indicative  of  my  profession,  but  in  go- 
ing to  Albany  the  other  day,  I  forgot  my  accus- 
tomed caution,  and  tied  my  bundle  of  papers  with 
red  tape.  On  the  cars  I  was  sharply  scrutinized  by 
a  dyspeptic  and  saintly  gentleman,  who  looked  too 


126  A    SOCIETY    FOR   THE    PREVENTIOIST 

good  for  this  world,  and  out  of  whose  shoulders  1 
expected  momentarily  to  see  a  pair  of  wings  sprout- 
ing; presently  he  approached  me,  and  in  a  hollow 
voice,  asked  me  if  I  were  not  a  lawyer  —  much  in 
the  manner  that  you  would  ask  one  if  he  were  not 
the  devil.  I  replied,  in  a  deprecatory  manner,  that 
I  was  one  of  that  unhappy  and  despised  race. 
Thereupon  he  pressed  upon  me  a  printed  paper,  at 
arm's  length,  as  if  I  were  a  leper,  and  hastily  re- 
treated. I  read  the  paper,  which  was  in  the  words 
and  figures  following: 

"and  thex?" 

''A  young  man,  whom  I  had  known  as  a  boy 
came  to  an  aged  professor  of  a  distinguished  conti- 
nental university  with  a  face,  beaming  with  delight, 
and  informed  him  that  tlie  long  and  fondly  cher- 
ished desire  of  his  heart  was  at  length  fulfilled,  his 
parents  having  given  their  consent  to  his  studying 
the  profession  of  the  law.  As  the  university  pre- 
sided over  by  his  friend  was  a  distinguished  one,  he 
had  repaired  to  its  law  school,  and  was  resolved  to 
spare  no  labor  or  expense  in  getting  through  his 
studies  as  quickly  and  ably  as  possible.  In  this 
strain  he  continued  for  some  time;  and  when  he 
paused,  the  old  man,  who  had  been  listening  to 
him  with  great  patience  and  kindness,  gently  said, 
'Well,  and  when  you  have  finished  your  career  of 
study,  what  do  you  mean  to  do  then?'  'Then  I 
shall  take  my  degree,'  answered  the  young  man. 

"  '  And  then  ? '  asked  his  venerable  friend.  '  And 
then,' continued  the  youth,  'I  shall  have  a  num- 
ber of  difficult  and   knotty  cases  to  manage;  and 


OF   CRUELTY   TO    LAWYERS.  127 

shall  attract  notice  by  my  eloquence  and  wit  and 
acuteness,  and  win  a  great  reputation.' 

"'And  then?'  repeated  the  aged  man.  'And 
then!'  replied  the  youth;  'why,  then  there  can- 
not be  a  question  I  shall  be  promoted  to  some  high 
office  in  the  State,  and  I  shall  become  rich.' 

"  '  And  then?  '  '  And  then,'  pursued  the  young 
lawyer,  '  then  I  shall  live  comfortably  and  honora- 
bly in  wealth  and  respect,  and  look  forward  to  a 
quiet  and  happy  old  age.' 

"'And  then?'  repeated  the  old  man.  'And 
theu,'  said  the  youth,  'and  then  —  and  then  — 
and  then  I  shall  die.'  Here  his  venerable  listener 
lifted  up  his  voice  and  again  asked  with  solemnity 
and  emphasis:  'And  then?'  Whereupon  the  as- 
piring student  made  no  answer,  but  cast  down  his 
head,  and  in  silence  and  thoughtfulness  retired. 
The  last  'And  then?'  had  pierced  his  heart  like  a 
sword,  had  darted  like  a  flash  of  lightning  into  his 
soul,  and  he  could  not  dislodge  the  impression. 
The  result  was,  the  entire  change  of  his  mind  and 
course  of  his  life.  Abandoning  the  study  of  the 
law,  he  entered  upon  that  of  divinity,  and  spent  the 
remainder  of  his  days  in  the  labors  of  a  minister  of 
Christ.  —  [iVb.  154  American  Tract  Society.'" 

Now,  one  of  the  main  purposes  of  my  Society  for 
the  Prevention  of  Cruelty  to  Lawyers  would  be  to 
issue  tracts  aimed  at  other  jDCople  than  lawyers  — 
say  clergymen,  for  instance.  Adopting  the  forego- 
ing courteous  and  winning  exhibit  as  my  model,  I 
would  suggest  the  following: 


128  A    SOCIETY   FOR   THE    PREVENTIOJT 

AND   THEN? 

A  young  man,  who  never  was  a  boy,  came  to  an 
aged  professor  of  a  distinguished  law  school,  with  a 
face  full  of  gravity,  and  informed  him  that  the  long 
and  fondly  cherished  desire  of  his  heart  was  at 
length  fulfilled,  his  parents  having  given  their  con- 
sent to  his  studying  the  profession  of  divinity.  As 
the  university  with  which  his  friend  was  connected 
was  a  distinguished  one,  he  had  repaired  to  its  di- 
vinity school,  and  was  resolved  to  spare  no  labor  or 
expense  in  getting  through  his  studies  as  quickly 
and  as  ably  as  possible.  In  this  strain  he  contin- 
ued for  some  time;  and  when  he  paused,  the  old 
man,  who  had  been  listening  to  him  with  great  pa- 
tience and  kindness,  gently  said:  "Well,  and  when 
you  have  finished  your  career  of  study,  what  do  you 
mean  to  do  then?"  "Then  I  shall  take  my  de- 
gree," answered  the  young  man.  "And  then?" 
asked  his  venerable  friend.  "And  then,"  contin- 
ued the  youth,  "  I  shall  have  a  great  many  knotty 
and  difficult  dogmas  to  reconcile  with  common 
sense,  and  shall  attract  notice  by  my  eloquence,  my 
dignity,  and  my  abuse  of  lawyers  and  other  bad 
men,  and  shall  claim  to  wield  the  power  of  the  Al- 
mighty in  condemning  to  perdition  all  clergymen 
and  other  Christians  who  shall  dare  to  differ  from 
me  in  opinion,  and  the  members  of  all  professions 
who  shall  dare  to  contend  with  the  clergy  for  a 
share  of  the  respect  and  confidence  of  their  fellow- 
men,  and  shall  win  a  great  reputation."  "And 
then?  "  repeated  the  aged  man.  "  And  then,"  re- 
plied the  youth,  "why  then  there  cannot  be  a  ques- 
tion I  shall  be  called  by  some  wealthy  congregation. 


OF    CKUELTT   TO    LAWYERS.  129 

and  shall  marry  a  rich  wife. "  "  And  then  ?  "  "  And 
then,"  pursued  the  young  divine,  "then  I  shall  live 
comfortably  and  lazily  in  wealth  and  respect,  and 
look  forward  to  a  quiet  and  happy  old  age."  "And 
then?"  repeated  the  old  man.  "And  then,"  said 
the  youth,  "and  then  —  and  then  —  and  then  1 
shall  probably  die."  Here  his  venerable  listener 
lifted  up  his  voice,  and  again  asked,  with  solemnity 
and  emphasis:  '' Anditlienf"  Whereupon  the  as- 
piring student  made  no  answer,  but  cast  down  his 
liead,  and  in  silence  and  thoughtfulness  was  retir- 
ing, but  as  he  got  to  the  door,  he  slowly  and  sadly 
answered:  "  Why  then  I  suppose  I  shall  be  sorry  I 
wasn't  a  lawyer."  This  last  "And  tlienV^  had 
pierced  his  heart  like  a  sword,  had  darted  like  a 
flash  of  lightning  into  his  soul,  and  he  could  not 
dislodge  the  impression.  The  result  was  the  entire 
change  of  his  mind  and  course  of  his  life  for  the 
better.  Abandoning  the  study  of  divinity,  he  en- 
tered upon  that  of  the  law,  and  spent  the  remainder 
of  his  days  as  an  honest,  useful,  and  civil  lawyer. — 
{No.  154  Society  for  the  Prevention  of  Cruelty  to 
Laioyers. 

Another  main  purpose  of  my  society  would  be  to 
keep  track  of  and  refute  the  misrepresentations  — 
(I  desire  to  be  gentlemanly  in  my  choice  of  words) — 
of  authors.  And  now  for  my  other  shock.  One  of 
the  most  charming  writers  in  English  literature  is 
Arthur  Helps,  author  of  "The  Spanish  Conquests 
in  America,"  "  Friends  in  Council,"  etc.  In  one  of 
his  earlier  works,  "Companions  of  my  Solitude," 
in  the  course  of  a  gloomy  view  of  law  and  lawyers, 
he  says:  "These  evils  are  not  of  yesterday,  or  of 
17 


130  A    SOCIETY    FOE   THE    PREVEXTIOX 

this  country  only;  I  observe  that  the  first  Spanish 
colonists  in  America  write  home  to  the  government, 
begging  them  not  to  allow  lawyers  to  come  to  the 
colony."  Xow  here  is  where  my  other  shock  comes 
in.  If  the  author  had  cited  Herod  as  an  example 
of  philoprogenitiveness;  Nero  as  a  model  of  filial 
affection;  Alaric,  Attila  and  Genseric  as  peace- 
makers; Philip  Second  as  an  advocate  of  civil  and 
religious  liberty,  or  Henry  Eighth  as  a  precedent 
for  conjugal  fidelity,  my  nervous  system  would  not 
have  undergone  the  shock  that  it  experienced  at 
hearing  him  cite  the  antipathy  of  "  the  first  Span- 
ish colonists  in  America,"  as  any  thing  against  law- 
yers. 

"Who  were  "  the  first  Spanish  colonists  in  Ameri- 
ca," and  what  Avas  the  moving  principle  of  their 
emigration?  They  were  a  crowd  of  adventurers 
and  vagabonds,  who  came  to  this  country  to  sub- 
sist on  the  stolen  gains  and  labors  of  other  men  — 
a  pack  of  thieves  and  cut-throats,  who,  starting  out 
under  the  banner  of  church  aggrandizement  or 
maritime  discovery,  through  the  auri  sacra  fames 
fell  into  the  most  dreadful  course  of  oppression  and 
injustice  that  the  history  of  the  world  records  —  op- 
pressions on  an  amiable  and  unoffending  race,  which 
in  some  instances,  as  for  example  in  Cuba,  they  al- 
most exterminated  in  their  mad  and  wicked  hunt 
after  money  without  labor.  The  roasting  of  In- 
dians was  a  pursuit  in  which  lawyers  would  have 
been  of  no  use.  Such  mild-mannered  gentry  as 
Pizarro  and  Cortez  needed  no  rascal  attorneys  to 
aid  them  in  their  efforts  for  the  conversion  of 
heathen  Mexicans  and  Peruvians,  as  recorded  by 


OF    CEUELTY   TO    LAWYERS.  131 

the  Spanish  historians.  Where  law  and  Justice  are 
unknown^  lawyers  are  superfluous.  Fair  play  was  a 
consideration  that  did  not  enter  into  the  plans  of 
'•'the  first  Spanish  colonists  in  America,"  and  so 
those  of  them  who  survived  the  ravages  of  venereal 
diseases  on  their  first  arrival,  unanimously  besought 
the  government  to  keep  the  lawyers  at  home,  in  or- 
der that  they  might  ravage,  slay  and  extort,  un- 
checked by  courts  of  justice.  They  wanted  such  a 
state  of  things  as  Pat  wrote  to  his  brother  in  Ire- 
land was  the  rule  in  this  country —  "no  hangin  for 
Stalin."  I  wonder  that  Mr.  Helps  did  not  also  quote 
the  remark  of  Peter  the  G-reat  on  his  visit  to  Eng- 
land, that  he  had  but  two  lawyers  in  his  dominions, 
and  meant  to  hang  one  of  them  on  his  return;  or 
that  of  Jack  Cade's  friend,  who  said,  "the  first 
thing  we  do,  let's  kill  all  the  lawyers."  The  truth 
is  that  lawyers  cannot  flourish  except  in  a  free  and 
enlightened  country,  and  their  numbers  and  influ- 
ence are  in  jDroportion  to  the  degree  of  freedom  and 
enlightenment.  I  dare  say  there  are  not  many  law- 
yers in  Xew  Zealand  or  China.  There  are  only 
some  eighteen  hundred  in  Prussia,  although  I  look 
for  their  rapid  increase  there  under  the  influence  of 
recent  events.  In  France  we  find  twelve  thousand, 
in  Great  Britain  thirty  thousand,  and  under  the 
government  founded  in  the  idea  of  fair  play  and  ab- 
solute equality  before  the  law,  we  have  forty  thou- 
sand of  this  incendiary  class.  In  the  face  of  such 
facts,  Mr.  Helps  should  not  cite  the  opinion  of  "  the 
first  Spanish  colonists  in  America,"  nor  of  the 
fiends  in  perdition,  although  I  dare  say  these  admi- 


132  A    SOCIETY   FOR   THE   PREVENTION 

rable  characters  would  agree  in  the  desire  to  sup- 
press the  lawyers. 

A  subsidiary  purpose  of  my  society  would  be  to 
keep  the  newspapers  honest  in  their  reports  of  law- 
suits and  remarks  about  lawyers.  Nothing  unrea- 
sonable should  be  required  of  them;  if  one  report 
in  three  were  moderately  correct,  it  is  all  that  could 
be  exacted.  All  of  us,  from  the  judge,  who  is  al- 
ways delivering  an  ''impartial  and  comprehensive 
charge,"  to  the  advocate  who  never  makes  any  but 
an  ''able  and  eloquent  effort,"  feel  the  power  of 
the  press;  but  we  know,  too,  that  pecuniary  offer- 
ings soothe  the  terrible  deities  who  preside  over  it, 
and  allay  their  just  wrath,  and,  consequently,  my 
society  should  establish  a  sinking  fund,  to  provide 
against  the  virtuous  spasms  of  the  newspapers. 

Another  minor  purpose  of  my  society  would  be 
to  protect  lawyers  against  law  reports.  If  we  were 
expected  only  to  know  the  contents  of  the  reports, 
that  we  could  get  along  with;  but  when  we  are  re- 
quired to  pay  for  them,  that  strikes  home.  Not 
only  this,  but  how  is  one  going  to  house  them  ?  If 
they  go  on  much  longer,  every  lawyer  will  be  forced 
to  hire  a  rope-walk  to  keep  his  books  in.  Oh  for 
some  Omar  or  Von  Moltke,  to  burn  some  new 
Alexandria  or  Strasbourg  with  all  the  law  reports! 
A  pension  list  might  be  made  for  the  reporters, 
conditional  on  their  issuing  no  more  reports,  or,  at 
all  events,  not  more  than  one  or  two  volumes  a 
day. 

I  would  also  have  my  society  suppress  bar  meet- 
ings on  the  death  of  lawyers.  This  I  put  mainly 
on  the  ground  of  the  poverty  of  our  language  in 


OE    CRUELTY   TO    LAWYERS.  133 

adjectives,  and  its  utter  inadequacy  to  describe  the 
virtues  which  pertain  to  us  from  the  moment  we 
die. 

Perhaps  I  may  think  of  some  other  things  for 
my  society  to  do,  but  these  are  all  that  now  occur 
to  me. 


134  NUISANCE. 


NUISANCE. 


The  law  is  careful  of  the  eyes,  ears  and  noses  of 
mankind,  and  will  not  justify  offensive  sights, 
sounds,  or  smells,  but  will  punish  as  crimes  offenses 
against  those  necessary  and  sensitive  organs,  pro 
vided  such  offenses  involve  a  general  and  public 
disturbance.  But  the  offense  must  be  rank,  and 
smell  to  heaven,  to  sustain  an  indictment.  Other- 
wise, nothing  more  than  an  action  for  damages  will 
lie.  Quite  an  extraordinary  catalogue  might  be 
made  of  the  complaints  which  nervous  people  have 
made  against  their  neighbors  —  to  say  nothing  of 
serious  attacks  upon  health  by  offensive  trades  and 
occupations  which  have  come  before  the  courts. 
Concert  saloons  and  locomotives,  bowling  alleys  and 
butting  rams,  billiard  saloons  and  biting  dogs, 
boiler  shops  and  bathing  in  exposed  situations, 
swearing  and  slaughter-houses,  obstructions  to  travel 
in  public  streets  by  means  of  too  attractive  shop 
windows,  or  the  vending  of  distillery  slops;  and  a 
score  of  other  things,  have  constituted  the  cause  of 
action  under  this  head.  Let  us  glance  at  a  few  of 
the  more  curious  cases. 

The  courts  in  ]S"orth  Carolina  seem  singularly  in- 

_sensible  to  the  charms  of  music.     In  State  v.  Bald- 

ivin  (1  Dev.  and  Bat.  195),  it  was  held  no  nuisance 

to  curse  and  swear  so  loud  at  a  tavern  as  to  break 

up  a  singing  school  near  by.     It  is  a  very  improv- 


NUISANCE.  135 

ing  mental  exercise  to  read  a  syllabus,  and  then, 
closing  the  book,  try  to  imagine  on  what  grounds 
the  court  places  its  decision.  For  instance,  in  this 
case,  I  imagined  that,  perhaps,  the  court  held  the 
cursing  and  swearing  to  be  the  legitimate  and  ordi- 
nary use  of  the  tavern  property,  of  which  the  owner 
could  not  lawfully  be  restrained.  Or,  perhaps,  the 
quality  of  the  music  had  something  to  do  with  the 
decision,  for  it  must  be  admitted  that  poor  singing 
is  almost  as  bad  as  profanity.  Indeed,  might  it  not 
have  been  its  bad  quality,  grating  on  the  cultivated 
and  sensitive  ears  of  the  tavern  guests,  that  caused 
their  profanity,  as  certain  sounds  of  the  gamut  are 
said  to  cause  dogs  to  howl?  Was  the  singing  relig- 
ious or  secular?  Even  if  religious,  have  we  not 
Falstaff's  testimony  that  he  had  spoiled  his  voice 
with  singing  of  j^salms?  But  now,  opening  the 
book,  see  how  mistaken  we  have  been,  and  how,  ex- 
cept in  the  last  conjecture,  we  have  not  even  ap- 
proached the  real  ground  of  decision:  ''Its  inter- 
ruption"— that  of  the  singing  school — "cannot  be 
legally  pronounced  an  inconvenience  to  the  whole 
community.  The  loss  of  instruction  in  the  accom- 
plishment, to  those  who  would  fain  acquire  it,  does 
not  very  gravely  influence  the  good  order  or  enjoy- 
ment or  convenience  of  the  citizens  in  general,  so 
as  to  call  for  redress  on  the  complaint  of  the  State." 
That  is  to  say,  as  corporations  have  no  souls,  so  the 
State  has  no  ears.  But  further:  "If  we  sustain 
this  as  an  indictment  for  a  common  nuisance,  we 
shall  be  obliged  to  hold  that  whenever  two  or  more 
persons  talk  loud,  or  curse,  or  quarrel,  in  the  pres- 
ence of  others,  it  may  be  charged  that  this  was  done 


136  NUISAXCE. 

to  the  common  nuisance,  and  if  so  found,  will  war- 
rant punishment  as  for  a  crime."  The  judge  is, 
perhaps,  sound  here;  such  a  doctrine  would  involve 
even  the  abolition  of  our  National  Congress  —  a  ca- 
lamity at  which  every  good  citizen  would  stand 
aghast.  And  yet,  in  Pennsylvania,  they  held  that 
the  offense  of  being  a  common  scold  is  indictable, 
and  may  be  punished  by  fine,  or  fine  and  imprison- 
ment, at  discretion.  James  v.  CoynmonweaUh  (12 
S.  and'R.  220).  But  the  judge  winds  up  thus: 
*'  The  persons  disturbed  are  not  represented  as  hav- 
ing been  engaged  iu  the  performance  of  any  public 
duty  —  as  engaged  in  religious  worship,  attending 
at  any  election,  or  at  a  court.*'  Here,  perhaj^s,  was 
the  defect  in  the  prosecutor's  case;  he  should  have 
proved  that  the  singing  school  were  practicing 
hymn  tuues.  I  fear  that  this  case  indicates  some- 
thing rotten  in  the  State  of  North  Carolina.  Did 
not  Shakespeare  say: 

"  The  court  that  hath  no  music  in  himself, 
Nor  is  not  moved  by  concord  of  sweet  sounds, 
Is  fit  for  treason,  stratagems,  and  spoils, ' 

And  does  not  the  late  national  "  unpleasantness," 
taken  in  connection  with  this  decision,  bear  out  the 
poet's  idea?  But  as  the  old  pine-wood  common- 
wealth has  in  vain  struggled  for  liberty,  ''and  the 
sounding  aisles  of  her  dim  woods "  cannot  '*  ring 
with  the  anthems  of  the  free,"  she  is  determined 
that  they  shall  at  least  ring  with  those  of  the  "free 
and  easy."  Quite  possibly  it  would  there  be  held  a 
nuisance  to  sing  so  loud  as  to  break  up  the  cursing 
and  swearing  at  a  tavern  near  by. 


NUISANCE.  137 

Another  case  to  which  we  would  call  attention  is 
State  V.  Lhihhmo  (69  N.  C.  214).  The  defendant 
was  indicted  for  disturbing  a  religious  congregation. 
He  was  a  strict  member  of  the  Methodist  church, 
and  a  man  of  exemplary  deportment,  but  he  sang 
in  such  a  way  as  to  disturb  the  congregation.  The 
disturbance  consisted  partly  in  his  holding  on  the 
notes  after  the  other  singers  had  let  go.  He  was 
evidently  trying  to  realize  Milton's  idea  of  "  linked 
sweetness  long-drawn  out."  This  disturbance  was 
decided  and  serious;  *'  the  effect  of  it  was  to  make 
one  part  of  the  congregation  laugh  and  the  other 
mad;  the  irreligious  and  frivolous  enjoyed  it  as  fun, 
while  the  serious  and  devout  were  indignant." 
Once  the  preacher  had  shut  up  the  book  and  de- 
clined to  sing  the  hymn.  The  presiding  elder  had 
refused  to  preach  in  the  church  on  account  of  the 
disturbance.  On  one  occasion,  "  a  leading  member 
of  the  church,  appreciating  that  there  was  a  feeling 
of  solemnity  pervading  the  congregation  in  conse- 
quence of  the  sermon  just  delivered,  and  fearing 
that  it  would  be  turned  into  ridicule,  went  to  the 
defendant  and  asked  him  not  to  sing,"  and  he  then 
refrained.  On  many  occasions  the  church  members 
and  authorities  expostulated  with  him  on  account 
of  his  singing  and  its  disturbing  effects,  but  he  in- 
variably replied,  that  "  he  would  worship  his  God, 
and  that  as  a  part  of  his  worship  it  was  his  duty  to 
sing."  One  of  the  witnesses,  being  asked  to  describe 
his  singing,  sang  a  verse  in  his  voice  and  manner, 
which  "produced  a  burst  of  long  and  irresistible 
laughter,  convulsing  alike  the  spectators,  the  bar. 
the  jury,  and  the  court."  The  jury  found  him 
18 


138  NUISANCE. 

guilty,  but  this  was  reversed  because  there  was  no 
proof  or  pretense  of  any  intention  or  purpose  to 
disturb  the  worship,  but  on  the  contrary  it  was  ad- 
mitted that  he  was  conscientiously  taking  part  in 
the  religious  services,  and  doing  his  "level  best." 
Now  this  was  a  serious  case.  The  offender  was  a 
member  of  the  church  in  good  standing,  and  there 
was  no  fault  in  him  save  the  eccentric  character  of 
his  vocalization.  But  it  must  have  been  a  harrow- 
ing reflection  to  his  fellow  church  members  that  he 
was  to  be  saved,  and  that  they  were  bound  to  listen 
to  that  singing  through  all  eternity.  Those  jealous 
brethren  must  try  some  other  course.  If  they  had 
come  to  me  originally,  or  dropped  me  a  line,  I 
could  easily  have  managed  the  matter  for  them. 
I  should  have  said  to  them,  just  induce  Brother 
Linkhaw  to  embrace  the  ministry,  and  then  he  Avill 
have  to  "rotate."  I  must  confess,  however,  that 
I  am  puzzled  by  the  admission  in  evidence  of  the 
imitation  of  the  defendant's  style  of  singing.  It 
was  not  a  photograph,  nor  an  exemplified  copy,  nor 
a  contemporaneous  memorandum,  nor  a  deposition 
de  bene  esse.  How  was  it  brought  wp  on  appeal  ?  It 
was  in  no  sense  an  exhibit,  and  could  not  have 
formed  a  part  of  the  record.  Perhaps,  as  is  some- 
times done  in  our  appellate  courts  in  the  case  of 
cumbrous  articles  of  evidence,  like  the  cellar  door 
on  which  the  man  kept  his  accounts,  it  was  pro- 
duced extraneously  and  dehors  the  record  on  the  ar- 
gument. Perhaps  the  witness  repeated  his  imita- 
tion on  the  hearing  of  the  appeal.  In  that  case  I 
should  suppose  the  judge  who  delivered  the  opin- 
ion would  have  indulged  more  in  the  humorous. 


NUISANCE.  139 

and  not  have  limited  his  observations  to  the  com- 
mon-phice: — **It  would  seem  that  the  defendant  ia 
a  proper  subject  for  the  discipline  of  his  church, 
but  not  for  the  discipline  of  the  courts."  Besides, 
I  think  he  is  rather  a  proper  subject  for  the  dis- 
cipline of  that  singing  school  which  was  the  dis- 
turbed party  in  State  v.  Baldiuin. 

In  this  connection  it  may  be  observed  that  curs- 
ing and  swearing,  to  a  moderate  and  reasonable  de- 
gree, is  not  a  nuisance.  To  constitute  such  pro- 
fane cursing  and  swearing  as  would  be  indictable  as 
a  nuisance,  the  acts  must  be  so  repeated  and  so  pub- 
lic as  to  become  an  annoyance  and  inconvenience  to 
the  community.  The  law  is  not  so  harsh  as  to 
deem  it  a  nuisance  publicly  to  curse  and  swear 
for  the  space  of  two  hours.  State  v.  Jones  (9 
Ired.  38). 

But  the  law,  although  indulgent,  cannot  stand 
every  thing,  and  so  the  keeping  in  a  public  house 
of  *'*  a  certain  common,  ill-governed,  and  disorderly 
room,"  and  procuring  and  suffering,  for  lucre,  dis- 
orderly persons  to  meet  and  remain  therein  by  night 
and  by  day,  ''drinking,  tippling,  cursing,  swearing, 
quarreling,  making  great  noises,  rolling  bowls  in 
and  at  a  game  commonly  called  ten-pins,"  etc.,  is 
a  public  nuisance.  Bloomhuf  v.  State  (8  Blackf. 
205). 

One  would  think  that  the  Xortli  Carolina  lawyers 
deemed  courts  and  elections  religious  assemblages. 
Thus,  in  State  v.  Kirby  (1  Murphy,  254),  an  indict- 
ment was  sustained  which  alleged  that  the  defend- 
ant "  swore  several  oaths  in  the  court  yard  during 
the  sitting  of  the  court,  to  the  great  disturbance 


140  XUISAKCE. 

and  common  nuisance  of  the  citizens  attending  said 
court."  The  idea  suggested  in  this  case  and  in 
State  V.  Baldium,  that  citizens  are  peculiarly  apt  to 
be  annoyed  by  profanity  while  attending  court  or 
election,  seems  rather  fanciful.  That  they  are 
more  apt  to  be  guilty  of  it  at  those  times  may  be 
admitted.  But  the  law  ought  to  be  lenient  toward 
human  frailty,  and  consider  the  provocation  of  an 
unexpected  nonsuit,  or  the  dereliction  of  a  pledged 
elector,  as  going  far  to  excuse  unpremeditated  pro- 
fanity. 

In  Illinois  Central  Railroad  Co.  v.  Grahill  (1 
Freeman,  241),  which  was  an  action  brought  by 
Grabill  to  recover  damages  for  the  disturbance  of 
her  enjoyment  of  her  premises  caused  by  the  main- 
tenance by  the  railroad  of  cattle-pens  and  hog-pens 
near  the  same,  it  was  held  that  the  shouting  and 
noises  made  by  those  having  charge  of  the  stock 
could  not  be  regarded  as  an  element  of  damage,  for 
the  drovers  "  were  not  in  a  position  to  be  controlled 
by  the  company  or  their  agents.  Should  they,  as 
they  doubtless  did,  outrage  the  decencies  and  pro- 
prieties of  life,  the  company  could  not  be  held  re- 
sponsible, not  having  this  control."  The  railroad 
company  could  not  comjDel  the  hog-drivers  to  ad- 
dress their  charge  in  a  whisper.  What  the  court 
would  have  held,  if  the  drivers  had  cursed  and 
sworn  at  the  hogs,  does  not  appear;  although  it  is 
probable  that  this  would  have  formed  a  proper  ele- 
ment of  damage. 

It  is  perhaps  doubtful  under  what  category  Com- 
momoealth  v.  Taylor  (5  Binney,  277)  ought  to  be 
classed,  but  it  is  digested  under  Xuisauce.    The  de- 


NUISANCE.  141 

feudant  was  indicted  for  "  that  be,  on  the  24th  of 
August,  1809,  about  the  hour  of  ten  of  the  clock  in 
the  night  of  the  same  day,  witli  force  and  arms,  at 
Lurgen  township,  in  the  county  aforesaid,  the 
dwelling-house  of  James  Strain  there  situate,  un- 
lawfully, maliciously,  and  secretly,  did  break  and 
enter  with  intent  to  disturb  the  peace  of  the  com- 
monwealth; and  so  being  in  said  dwelling-house, 
unlawfully,  vehemently  and  turbulently  did  make  a 
great  noise,  in  disturbance  of  the  peace  of  the  com- 
monwealth, and  greatly  misbehave  himself  in  the 
said  dwelling-house;  and  Elizabeth  Strain,  the  wife 
of  the  said  James  (not  the  commonwealth  now),  did 
frighten  and  alarm,  by  means  of  which  said  fright 
and  alarm  she,  the  said  Elizabeth,  being  then  and 
there  pregnant,  did,  on  the  7th  day  of  September, 
in  the  year  aforesaid,  at  the  county  aforesaid,  mis- 
carry, and  other  wrongs  to  the  said  Elizabeth  then 
and  there  did,  to  the  evil  example,"  etc. 

The  defendant  tried  to  escape  punishment  on  the 
ground  that  this  was  a  "crime  without  a  name," 
but  the  court  thought  it  a  misdemeanor  notwith- 
standing. Counsel  cited  several  cases  where  indict- 
ments had  been  supported  for  similar  injuries. 
Thus,  a  great  noise  Avith  a  speaking  trumpet,  to  the 
disturbance  of  the  neighborhood,  is  a  nuisance. 
Rex  V.  Smith  (1  Stra.  704).  So,  too,  where  the  de- 
fendant unlawfully  and  violently  knocked  at  the 
door  of  the  prosecutor  for  tv/o  hours,  whereby  his 
wife  Avas  frightened  and  miscarried.  Rex  v.  Hood 
(Say.  167).  So,  too,  where  the  defendant  unlaw- 
fully entered  a  house,  and  "  committed  a  nuisance  " 
on  the  floor,  in  presence  of  the  prosecutor's  wife. 


142  NUISANCE. 

Rex  V.  Rollo  (Say.  158).  Chief  Justice  Tilghman 
went  for  punishing  the  defendant,  because  "the 
malicious  ingenuity  of  mankind  is  constantly  pro- 
ducing new  inventions  in  the  art  of  disturbing 
their  neighbors."  Judge.  Yates,  too,  said  "human 
prudence  cannot  guard  against  such  outrageous 
and  unlawful  acts  as  are  here  stated."  But  Judge 
Brackenridge,  in  combatting  the  doctrine  that  the 
conduct  complained  of  was  a  mere  private  injury, 
waxed  learned,  eloquent,  and  metaphysical,  insist- 
ing that  an  assault  might  be  committed  by  the  con- 
cussion of  air  produced  by  speech: 

"But  taking  the  entry  to  amount  to  nothing 
more  than  a  walking  in,  the  door  open,  may  not  the 
motive  of  his  entry,  and  the  use  he  made  of  it,  con- 
stitute a  misdemeanor?  What  is  he  alleged  to  have 
done,  after  entering  the  house?  'Willfully,  vehe- 
mently and  turbulently  did  make  a  great  noise.' 
How  is  a  noise  occasioned  that  is  perceptible  to  the 
ear?  It  must  be  by  an  impulse  of  the  air  on  the  or- 
gans of  hearing.  And  what  is  it,  whether  it  is  by 
the  medium  of  air,  or  water,  or  earth,  that  an  as- 
sault and  battery  is  committed?  The  impulse  of 
the  air  may  give  a  great  shock.  Birds  have  fallen 
from  the  atmosphere  struck  by  a  mighty  voice. 
*•'  This  happened  at  the  celebration  of  the  Istlimian 
games,  as  related  by  Plutarch  in  his  life  of  Paulus 
Emilius.  Are  we  bound  to  consider  the  noise  gen- 
tle? Are  we  not  at  liberty  to  infer  the  mightiest 
effort  of  the  human  lungs?  But  the  power  of  im- 
agination increases  the  effect.  Armies  have  been 
put  to  rout  by  a  shout.  The  king  of  Prussia, 
in  the  seven  years'  war,  won  a  battle  by  the  sound 


NUISANCE.  143 

of  artillery  without  ball.  Indivirluals  have  been 
thrown  into  convulsions  by  a  sudden  fright  from  a 
shout. 

"The  infant  in  the  womb  of  a  pregnant  woman 
has  been  impressed  with  a  physical  effect  upon  the 
body,  and  even  u2)on  the  mind,  by  a  fright.  Mary 
Queen  of  Scots,  from-  the  assassination  of  llizzio, 
communicated  to  her  offspring  the  impression  of 
fear  at  the  sight  of  a  drawn  sword.  Peter  the 
Great  of  Russia  had  a  dread  of  embarking  on  water 
from  the  same  cause.  Shall  we  wonder,  then,  that 
death  is  occasioned  to  the  emhryo,  in  the  womb  of  a 
pregnant  woman,  by  a  sudden  fright?  If,  in  this 
indictment,  it  had  been  stated  that  the  woman  was 
pregnant  with  a  living  child,  it  might  have  been  a 
homicide.  But  she  is  stated  to  have  miscarried, 
which  is  the  parting  with  the  child  in  the  course  of 
gestation.  Will  not  the  act  of  the  individual  mali- 
ciously occasioning  this  constitute  a  misdemeanor? 
A  sudden  fright,  even  by  an  entry  without  noise, 
presenting  the  appearance  of  a  specter,  might  occa- 
sion this,  even  though  in  a  playful  frolic;  yet,  after 
such  effect,  would  not  the  law  impute  malice?  No 
person  has  a  right  to  trifle  in  that  manner  to  the  in- 
jury of  another." 

Eope-dancing  was  a  nuisance"  at  common  law. 
This  was  decided  by  Lord  Hale  in  Jacoi  HalVs  Case 
(1  Mod.  76).  Jacob  was  a  rope-dancer  of  the  time 
of  Charles  Second,  and  on  account  of  his  beauty 
and  activity,  had  been  taken  into  favor  by  the 
Countess  of  Castlemaine,  one  of  Charles'  mistresses. 
Hall  being  about  to  erect  a  stage  at  Charing-cross 
to  exhibit  his  performance,  the  king's  bench,  per- 


144  NUISANCE. 

haps  inspired  by  the  king's  excusable  jealousy  of 
Jacob,  held  Jacob  to  be  a  nuisance  in  respect  to  his 
rope-dancing.  That  he  claimed  to  have  the  king's 
warrant  for  it  made  no  difference.  If  Charles  had 
proposed  to  make  Jacob  dance  at  the  end  of  a  rope, 
perhaps  the  court  would  not  have  interfered.  It  is 
not  a  little  amusing  that  so  acute  a  man  as  Judge 
Cowen  should  have  attributed  the  conduct  of  the 
court  on  this  occasion  to  the  national  respect  for 
law  and  order.  In  Tanner  v.  Trustees  of  Albion 
(5  Hill,  128),  commenting  on  this  case,  he  observes: 
' '  Surely,  we  have  not  come  to  an  age  when  the 
morality  of  the  law  is  relaxed  beyond  what  it  was  in 
the  reign  of  Charles  the  Second,  the  date  of  Hall's 
booth,  erected,  as  he  said,  by  license  from  the  king. 
This  was  a  very  probable  account.  Charles  was 
known  to  be  the  most  careless  in  his  moral  conduct 
of  any  man  in  his  kingdom,  and  to  keep  a  court 
which  was  abandoned  to  all  sorts  of  licentiousness. 
The  Duke  of  Buckingham,  his  principal  adviser, 
was  said  himself  to  have  been  a  rope-dancer.  It  is 
not  very  likely  that  a  king  whose  palace  was  distin- 
guished for  being  the  largest  brothel  in  Europe, 
and  who  is  known  to  have  dismissed  Lord  Claren- 
don on  the  joint  advice  of  Buckingham  and  the 
Duchess  of  Cleveland,  a  prostitute,  would  hesitate 
to  license  any  vicious  establishments  for  which  such 
courtiers  might  invoke  his  patronage.  The  rule  of 
the  common  law  becomes  more  evident,  and  the 
precedent  referred  to  more  imposing,  when  thus 
placed  in  contrast  with  the  moral  waste  by  which  it 
was  surrounded."     The  judge's  innocence  is  more 


NUISANCE.  145 

easily  understood,  when  he  confesses,  in  the  same 
opinion:  "I  do  not  remember  ever  having  seen  a 
game  of  billiards  played,  and  am  still  farther  re- 
moved from  actual  knowledge  whether  the  rooms 
where  they  are  kept  have  a  tendency  to  promote 
any  kind  of  moral  evil." 

The  case  of  Tanner  v.  Trustees  of  Albion  was 
one  in  Avhich  the  court  held  a  bowling  alley,  kept 
for  gain  or  hire,  a  public  nuisance.  As  far  as  an 
obifer  dichim  could  do  it.  Judge  Cowen  frowned 
down  billiard-rooms  in  the  same  opinion.  "Were 
the  question  res  nova,'"  he  continues,  "I  doubt 
whether  I  could  bring  myself  to  join  in  the  annun- 
ciation that  a  billiard-room,  kept  for  lucre,  in 
whatever  place,  is  not  a  nuisance  at  common  law." 
Doubtless  the  good  judge's  bones  are  rattling  in 
their  grave  with  horror  at  the  present  unrebuked 
prevalence  of  billiard  saloons.  The  case  that  he 
was  driving  at  was  probably  People  v.  Sergeant  (8 
Cowen,  139),  where  it  Avas  held  that  keeping  a  bil- 
liard table,  where  no  betting  was  allowed,  but 
where  the  loser  of  the  rub  paid  for  the  use  of  the 
table,  was  not  a  nuisance  at  common  law.  Life, 
with  Judge  Cowen,  "  meant  business."  He  allowed 
no  fooling.  "So  far  as  I  have  been  able  to  dis- 
cover," he  says,  "erections  of  every  kind,  adapted 
to  sports  or  amusements,  having  no  useful  end,  and 
notoriously  fitted  up  and  continued  with  the  view 
to  make  a  profit  for  the  owner,  are  considered  in 
the  books  as  nuisances.  Not  that  the  law  discoun- 
tenances innocent  relaxation;  but  because  it  has 
become  matter  of  general  observation,  when  gainful 
establishments  are  allowed  for  their  promotion, 
19 


146  NUISANCE. 

such  establishments  are  usually  perverted  into  nur- 
series of  vice  and  crime."  Now,  is  it  not  fortunate 
for  me  that  the  great  judge  is  not  in  being?  For 
these  '' humorous  phases  of  the  law,"  being  designed 
for  sport  and  relaxation,  and  "having  no  useful 
end,"  if  I  should  print  and  bind  them  in  sheep  and 
offer  to  sell  them  to  my  brethren  of  the  legal  pro- 
fession, would  he  not  come  down  on  me,  call  me 
and  the  book  a  nuisance,  and  enjoin  us?  His  idea 
amounts  to  this:  the  moment  a  man  undertakes  to 
make  a  profit  by  furnishing  public  facilities  for  the 
pursuit  of  a  harmless  and  healthful  sport,  that  mo- 
ment he  becomes  a  nuisance.  He  is  then  held  to 
have  gone  into  the  "nursery"  business,  to  use  the 
judge's  language,  and  is  to  be  suppressed. 

Rex  V.  Medley  (6  Carr.  and  Payne,  292)  is  a  case 
fit  to  make  Isaac  Walton  "go  off  the  hooks."  The 
indictment  alleged  "that  from  time  whereof  the 
memory  of  man  runneth  not  to  the  contrary,  there 
had  been,  and  still  was,  a  certain  ancient  river 
called  the  Thames,"  which  was  full  of  water  fit  to 
drink,  and  of  fish  fit  to  eat,  the  taking  of  which  fish 
furnished  the  support  of  a  large  class  of  men;  that 
the  defendant  had  conveyed  into  said  river  the  ref- 
use of  gas,  whereby  the  water  was  rendered  unfit 
for  drinking,  and  the  fish  were  destroyed,  and  the 
fishermen  were  damaged  in  their  said  calling.  It 
was  proved  that  the  smell  of  the  gas  killed  the 
smelts  in  the  stream.  But  the  court,  who  was 
probably  not  fond  of  fishing,  remarked:  "If  the 
diminution  of  fish  is  to  be  considered  the  criterion, 
then  every  proprietor  of  a  copper-bottomed  vessel, 
every  maker  of  a  sewer,  every  proprietor  of  a  steam- 


NUISANCE.  147 

boat,  must  be  found  guilt}',  as  they  contribute  to 
such  diminution,  and  it  is  not  a  question  of  de- 
gree." ''As  the  people  of  England  are  resolved 
to  have  gas-lights,  and  steamboats,  and  copper-bot- 
tomed vessels,  they  must  be  content  also  to  bear  the 
inconveniences  which  will  occasionally  result  from 
the  use  of  them." 

The  public  is  very  slippery.  It  is  hard  to  lay 
hold  of.  It  has  been  repeatedly  held  that  works 
maintained  or  acts  committed  by  legislative  or  other 
public  authority  cannot  be  deemed  nuisances.  Har- 
ris V.  Tliomjjson  (9  Barb.  364),  and  cases  cited.  But 
how,  if  the  legislature  itself  be  generally  considered 
a  nuisance? 

In  Gilbert  v.  Mickle  (4  Sandf.  Ch.  357),  it  was 
held  that  a  placard  posted  or  paraded  in  a  public 
street,  before  the  door  of  an  auctioneer,  cautioning 
strangers  to  beware  of  mock  auctions,  constitutes  a 
nuisance  remediable  by  injunction;  and  although, 
as  it  appeared  that  this  was  done  by  direction  of 
the  mayor,  under  authority  of  a  statute,  an  injunc- 
tion was  refused,  yet  the  court  intimated  that  if  the 
complainant  were  innocent  he  might  have  a  remedy 
at  law,  or,  at  worst,  by  an  appeal  to  the  legislature 
to  abolish  the  obnoxious  statute.  To  say  that  a 
man's  lawful  business  could  be  broken  up  by  such 
an  act,  and  he  be  left  substantially  remediless, 
seems  a  mockery  of  justice,  and  would  justify  the 
auctioneer  in  knocking  down  the  intruder. 

Again,  as  it  is  not  lawful  to  post  a  person  in  the 
street  to  warn  away  a  crowd  from  an  individual's 
premises,  so  it  is  unlawful  to  station  one  to  attract 
a  crowd  to  a  person's  premises,  to  the  inconvenience 


148  NUISANCE. 

of  the  traveling  public.  It  is  even  unlawful  for  a 
person  so  to  conduct  on  his  own  premises  as  to  at- 
tract a  crowd  upon  the  sidewalk  so  as  to  obstruct 
the  public  passage.  So  it  was  held  in  Rex  v.  Car- 
lile  (6  C.  and  P.  627),  .that  if  a  party  having  a 
house  in  a  street,  exhibits  effigies  at  his  windows 
and  thereby  draws  a  crowd  to  look  at  them,  which 
causes  the  footway  to  be  obstructed  so  that  the  pub- 
lic cannot  jsass,  as  they  ought  to  do,  this  is  an  in- 
dictable nuisance,  and  it  is  not  at  all  essential  that 
the  effigies  should  be  libelous.  Mr.  Carlile  was  a 
gentleman  of  a  playful  but  withal  rather  satirical 
fancy,  who  kept  a  book  shop.  Having  been  dis- 
trained on  for  the  non-payment  of  a  church  rate,  he 
placed  in  one  of  his  windows  an  effigy  of  a  bishop  of 
the  established  church,  inscribed  "  Spiritual  Bro- 
ker," and  in  another  window  a  figure  of  a  man 
in  ordinary  dress,  inscribed  "  Temporal  Broker." 
These  figures  attracted  crowds  of  people  to  gaze  at 
them,  on  Sundays  as  well  as  secular  days,  and  the 
sidewalks  were  obstructed  so  that  persons  were 
forced  to  walk  in  the  carriage-way.  The  defendant 
afterward  added  a  third  figure,  that  of  the  devil 
Avith  a  pitchfork,  the  arm  of  the  bishop  being 
tucked  into  that  of  the  devil.  He  was  indicted 
separately  for  the  original  effigies  and  for  the  Sa- 
tanic addition.  It  was  proved  that  pockets  had 
been  picked  in  the  crowd.  Mr.  Harris,  a  neighbor- 
ing tradesman  (the  husband,  possibly,  of  the  fabu- 
lous "Betsy"),  swore  that  the  crowd  consisted  of 
"  the  lowest  of  the  low  "  —  so  low  in  fact  that  they 
had  lowered  his  cash  receipts  3/.  per  day.  Mr. 
Chandler,  proprietor  of  the  Portugal  hotel,  opposite 


NU1SA.NCE.  149 

defendant's  shop,  testified  that  the  crowd  standing 
over  his  area  gratings  darkened  his  kitchen  so  that 
the  servants  were  obliged  to  burn  candles  all  day;  an 
injury  which  of  course  would  be  naturally  uppermost 
in  the  mind  of  a  chandler.  Against  this  array  of 
government,  church  and  trade,  Mr,  Carlile  defended 
himself  with  great  humor  and  ability,  pleading  his 
own  cause.  He  urged  that  no  man  should  be 
blamed  for  endeavoring  to  attract  j^eople  to  his 
shop.  He  insisted  that  the  crowd  was  not  so  great 
as  that  when  his  majesty  goes  to  the  theater  or  to 
open  Parliament;  and  inquired,  ''why  do  we  pay 
for  situations  and  disburse  large  sums  of  money  an- 
nually in  Fleet  street,  if  it  is  not  to  have  the  oppor- 
tunity of  putting  things  in  our  windows  to  attract 
the  attention  of  the  customers?"  He  claimed  that 
Mr.  Gray  was  as  fairly  indictable  for  obstructing 
the  street  by  means  of  his  coach  office.  He  referred 
to  the  two  effigies  formerly  at  St.  Dunstan's  church, 
which  struck  the  quarters  of  the  hour,  attracting 
crowds  every  fifteen  minutes,  and  complained  that 
he  was  indicted  for  causing  seventy  jDersons  to  look 
at  his  effigies.  "I  would  ask,"  he  continued, 
"why  ought  not  the  Lord  Mayor  to  be  indicted  for 
the  crowd  that  he  attracts  on  the  9th  of  November 
every  year?  and  if  Bartholomew  Fair  is  allowed  in 
September,  I  ought  not  to  be  indicted  for  exhibit- 
ing effigies  in  October;  and  so  far  from  there  being 
any  thing  necessarily  improper  in  effigies,  the  fig- 
ures of  Gog  and  Magog  used  to  be  carried  in  the 
civic  procession.  It  is  said  that  the  effigies  exhib- 
ited by  me  are  libelous.  They  are  fair  figures,  and 
as  good  as  I  could  have  made;  one  of  them  is  a  fair 


150  NUISANCE. 

representation  of  a  bishop;  and  they  were  meant  to 
denote  that  the  church,  which  is  represented  by  tlie 
bishop,  is  not  supported  voluntarily,  but  by  the 
law,  which  is  represented  by  the  broker."  At  this 
point,  the  reporter  observed,  rather  acutely,  that 
*'Mr.  Carlile  did  not,  throughout  his  defense, 
make  any  remark  or  observation  on  the  figure  of 
the  Devih"  Mr.  Carlile  continued,  that  illumina- 
tions, military  movements,  and  the  learned  judges 
when  they  go  in  state  to  St.  Paul's,  all  attract 
crowds,  and  concluded  by  remarking  that  if  his  of- 
fense was  indictable,  "the  beautiful  daughter  of 
Mr.  Very  might  equally  have  been  charged  with  be- 
ing an  indictable  nuisance."  This  reference  is  ex- 
plained by  the  reporter,  who  says  that  Mr.  Very 
was  a  confectioner  in  Eegent  street,  who  had  a 
daughter  who  attended  to  his  shop,  who  was  so 
beautiful  that  a  crowd  of  three  or  four  hundred 
persons  used  daily  to  assemble  and  stand  at  his  shop 
windoAV  for  the  purpose  of  looking  at  her.  Police 
officers  were  obliged  to  be  in  constant  attendance 
before  his  house,  and  the  inconvenience  was  so 
great,  both  to  Mr.  Very  and  his  neighbors,  that  he 
was  obliged  to  send  his  daughter  out  of  town.  But 
all  this  availed  not  to  the  defendant.  Judge  Park 
replied  that  one  nuisance  does  not  justify  another, 
and  in  this,  he  remarked,  "the  learned  persons  who 
sit  beside  me  agree  with  me."  He  evaded  the  case 
of  the  prosecution  of  the  judges  by  saying  that  the 
crowd  move  with  it.  Lord  Mayor's  day  is  but  one 
day  in  the  year,  but  if  it  lasted  from  October  to 
December,  he  should  say  it  ought  to  be  put  a  stop 
to.     As  to  Bartholomew  Fair  being  a  nuisance,  he 


NUISANCE.  151 

was  inclined,  from  what  he  had  heard  of  it,  to  sus- 
pect that  the  defendant  was  right.  (Perhaps  the 
learned  judge  did  not  know  that  John  Locke  visited 
that  place,  and  that  Lady  Rachel,  "  that  sweet  saint 
who  sat  by  Russell's  side,"  and  whose  memory 
ought  to  be  sacred  to  every  lawyer,  once  wrote  he]* 
husband  that  her  sister  had.  just  returned  from 
Bartholomew  Fair,  and  ''stored  us  all  with  fair- 
ings.") The  jury  brought  the  defendant  in  guilty, 
sentence  was  suspended,  he  took  down  the  offensive 
figures,  and  in  the  end  was  fined  40s.  Now  Avhat 
can  the  ladies  hope  for  after  this  case?  It  is  even 
doubtful,  we  see,  whether  their  beauty  would  save 
them,  for  if  the  beautiful  Miss  Very  had  remained 
in  town  dealing  forth  the  sweets  of  her  father's 
shop,  we  rather  think  something  would  have  been 
devised  to  keep  the  streets  clear. 

A  very  recent  case  on  this  subject  is  Fairbanks  v. 
Kerr  (70  Penn.  86;  10  Am.  Rep.  664).  Mr.  Fair- 
banks, feeling  inspired  to  make  a  political  speech, 
and  not  finding  any  eligible  stump,  mounted  a  pile 
of  flag  stones  belonging  to  the  plaintiff,  and  pro- 
ceeded with  his  address.  A  crowd  assembled,  and 
in  their  eagerness  to  array  themselves  upon  the 
speaker's  platform,  some  of  them  standing  upon 
several  of  the  projecting  stones,  broke  them.  The 
court  held  that  the  act  of  making  a  speech  in  a  pub- 
lic street,  although  not  a  nuisance  2^er  se,  may  be- 
come a  nuisance  by  obstructing  the  public  highway, 
and  that  in  this  case  the  question  whether  the  de- 
fendant's act  was  the  proximate  cause  of  the  injury, 
was  for  the  jury.  The  judge  observes:  "A  street 
may  not  be  used  in  strictness  of  law  for  public 


152  KTISAXCE. 

speaking,  even  preaching  or  jDublic  worship;  or  a 
pavement  before  another's  house  may  not  be  occu- 
pied to  annoy  him." 

It  is  gratifying  to  learn  that  a  person  sick  of  an 
infectious  or  contagious  disease,  in  his  own  house, 
or  in  suitable  apartments  at  a  public  hotel  or  board- 
ing-house, is  not  a  nuisance.  Boom  v.  Utica  (2 
Barb.  104)  holds  this,  and  illustrates  the  eeliness 
of  the  public.  The  plaintiff  was  lessee  of  premises 
from  the  defendants,  at  an  annual  rent  of  $10. 
Without  his  consent,  some  aldermen,  who,  he 
claimed,  acted  under  authority  of  the  defendants, 
put  into  an  old  house  on  the  premises  a  family  sick 
with  the  small-pox,  removing  them  from  a  hotel, 
under  the  sanction  of  the  city  charter,  which  au- 
thorized the  abating  and  removing  of  nuisances. 
The  plaintiff  was  prevented  from  the  enjoyment  of 
the  lot,  for  the  purpose  of  pasturage  and  cultiva- 
tion, because  it  was  deemed  dangerous  to  approach 
the  house  under  the  circumstances.  Perhaps  he 
feared  that  his  cows  would  take  the  disease.  A 
'referee  gave  him  875  damages.  The  report  was  set 
aside  on  the  grounds  that  the  common  council  had 
no  power  to  authorize  the  act  complained  of,  and 
never,  in  fact,  did  authorize  it.  But  the  court  inti- 
mate that  the  city's  agents  did  wrong  in  taking  the 
family  from  the  hotel,  and  in  this  connection  hold 
that  being  sick  of  small-pox  at  a  hotel  does  not  ren- 
der one  a  nuisance  subject  to  ''removal."  Jenner- 
ally  this  doctrine  will  be  approved. 

But  a  person  is  indictable  for  ''unlawfully  and 
injuriously  carrying  a  child  infected  with  small-pox 
along  the  public  highway."     Rex  v.   Ventandileo  (4 


NUISANCE.  153 

M.  and  S.  73).     This  must  be  on  the  ground  that 
it  is  unlawful  to  set  a  nuisance  on  foot. 

What  would  the  gentle  author  of  "  The  Village 
Blacksmith"  say,  if  he  knew  that  it  had  been 
deemed  necessary  to  decide  that  a  court  of  chancery 
would  not  restrain  the  erection  of  a  blacksmith's 
shop  in  a  small  village,  on  the  averment  that  it 
would  be  a  nuisance  from  the  danger  of  fire  which 
it  would  create?  But  this  was  done  in  Ray  v. 
Lynes  (10  Ala.  63).  It  is  quite  possible  that  the 
chancellor's  judgment  was  influenced  by  his  recol- 
lection of  the  picture  drawn  by  the  poet: 

"  And  children,  coming  home  from  school. 
Look  in  at  the  open  door ; 
They  love  to  see  the  flaming  forge. 

And  hear  the  bellows  roar, 
And  catch  the  burning  sparks  that  fly 
Like  chaff  from  the  threshing  floor." 

And  the  poet,  in  return,  would  say: 

Thanks,  thanks  to  thee,  my  worthy  judge, 

For  the  lesson  thou  hast  taught ; 
In  no  contempt  of  poesy 

Are  your  decisions  wrought ; 
At  length  I  find  one  lawyer 

Who's  not  a  nuisance  thought 

20 


154  THE    IDIOCY    OF    MARRIED    AVOMEX. 


THE  IDIOCY  OF  MARRIED  WOMEN. 


The  metamorphosis  which  marriage  works  upon 
woman  is  one  of  the  funniest  phases  of  the  law.  I 
speak  of  the  common  law,  unaffected  by  any  of  the 
recent  statutes  which  have  wrought  such  radical 
changes  in  the  marital  relations.  The  discontented 
ladies  who  deliver  public  lectures  do  not  see  much 
fun  in  this.  To  them,  the  process  by  which,  contrary 
to  the  operations  of  nature,  the  beautiful  butterfly 
of  the  single  woman  degenerates  into  the  grub  of  the 
wife  is  a  hideous  reality.  But  to  me  there  is  some- 
thing ineffably  funny  about  it.  A  man  will  sigh  and 
fawn  around  a  woman  for  a  term  of  years,  celebrate 
her  unparalleled  virtues  and  wisdom  in  bad  verses, 
lose  flesh  and  spirit  if  she  frowns,  kneel  to  her  as  the 
Hindoo  to  his  idol,  and  grovel  in  utter  abasement 
before  her  conceded  superiority;  and  then,  when 
he  is  permitted  to  put  the  wedding  ring  on  her  finger, 
as  if  by  magic  change,  she  grows  imbecile  and  idiotic, 
unable  to  act  and  judge  for  herself ;  loses  her  right  to 
control  her  property  or  earnings,  and  becomes,  like 
an  infant,  utterly  irresponsible  for  every  th  ing  she 
may  have  said  or  done.  No,  not  everything;  if  she 
has  done  any  thing  worthy  of  prison  or  hanging,  the 
law  deems  her  of  sufficient  mental  capacity  to  an- 
swer for  that,  but  adjudges  the  husband  the  vica- 
rious sufferer  for  every  thing  else.     What  a  fall  from 

"  A  perfect  woman,  nobly  planned, 
To  warn,  to  comfort,  and  command  !  " 


THE    IDIOCY    OF   MARRIED    WOMEN.  155 

It  would  seem  that  some  commentator  during  all 
these  ages  would  have  been  struck  by  the  absurdity 
of  this  state  of  affairs.  But,  as  to  one  in  a  dream, 
the  most  ridiculous  occurrences  seem  consistent  and 
natural,  so  among  the  law-writers  this  phase  of  law 
has  never,  until  very  recently,  excited  any  surprise, 
but  has  been  spoken  of  as  gravely  as  the  monks  of 
the  middle  ages  narrated  the  legends  of  the  church. 
In  regard  to  this  miraculous  metamorphosis,  how- 
ever, Byron,  in  a  new  edition  abour  to  be  issued  by 
Mrs.  Stowe,  with  adaptations  for  family  reading, 
will  probably  cause  Childe  Harold  to  observe: 

The  tune  is  changed  ;  and  such  a  change !  oh  law 
And  legislators,  ye  are  wondrous  strong  ! 

And  ugly  in  your  strength  as  was  the  jaw 
Of  ass  in  hands  of  Sampson  ;  far  along 

From  page  to  page,  the  sheep-clad  books  among, 
Sticks  the  huge  blunder;  not  in  lonely  bravery, 

But  every  sage  repeats  the  hardy  wrong  ; 
And  only  Schouler  comments  on  the  knavery 
Of  Coke  &  Co.'s  belief  in  woman's  slavery. 

But,  funniest  of  all,  the  husband  does  not  seem 
conscious  of  the  degeneracy  of  his  idol.  If,  on  the 
morning  next  succeeding  his  wedding  night,  he 
should  find  his  blonde  bride  converted  into  a  black- 
amoor, we  can  imagine  that  he  would  let  the  world 
hear  of  it.  But  to  discover  that  the  partner  of  his 
bosom  and  the  prospective  mother  of  his  children 
has,  in  one  night,  become  an  irresponsible  and  un- 
judging  idiot,  does  not  disturb  his  composure  a 
whit.  Marriage  has  elevated  him  from  the  attitude 
of  suppliant  into  that  of  a  sovereign.  He  is  now. 
Bays  the  law,  dignior  persona.     Let  us  imagine  this 


156  THE    IDIOCY    OF   MARRIED    WOMEX. 

superior  person  before  marriage  thus  addressing 
the  young  lady,  whose  golden,  raven,  or  ruby  hair 
(as  the  case  may  be)  rests  confidingly  on  his  manly 
shoulder:  "My  heart's  adored,  I  know  the  law  sets 
me  a  hard  task,  but,  for  your  sweet  sake,  I  do  not 
shrink.  Your  property  -will  become  mine,  it  is 
true,  and  you  will  be  dependent  on  my  bounty  for 
every  penny  that  finds  its  Avay  into  your  jDurse;  if 
you  make  any  money  by  embroidery,  or  music  les- 
sons, or  keeping  boarders,  that,  too,  will  be  mine; 
and  if  an}^  of  your  relatives  should  hereafter  will 
you  any  thing,  I  shall  be  forced  to  confiscate  that 
also.  But  just  see,  my  only  love,  what  a  price  I 
must  pay  for  these  insignificant  privileges.  As  you 
have  had  a  rich  and  indulgent  father,  of  course  you 
have  contracted  numerous  debts;  these  I  must  can- 
cel. You  know,  my  sweet,  you  have  a  violent  tem- 
per and  enormous  muscular  power,  and  have  been 
guilty  of  a  great  many  slaciders  and  assaults  and 
batteries;  after  we  are  married,  I  may  be  mulcted 
in  damages  for  these.  You  see  what  risks  I  run. 
I  don't  know  that  you  have  ever  murdered  any- 
body; but  if  you  have,  the  law  generously  permits 
me  to  make  an  exception  in  your  favor,  and  allow 
you  instead  of  myself  to  be  hanged,  and  I  do  it  with 
my  whole  heart."  By  such  a  declaration  the  young 
man  would  probably  not  greatly  commend  himself 
to  the  young  lady;  and  yet,  if  she  should  go  to  her 
legal  adviser,  he  would  instruct  her  that  such  is  the 
theory  of  the  law.  And  as  Mark  Tapley  would  say, 
''Isn't  this  jolly?" 

This  idiocy  of  the  wife  is  probably  founded  on 
the  maxims  of  Noy,  Selden,  and  those  other  humor- 


THE   IDIOCY    OF   MARRIED    WOMEN'.  157 

ists  who  laid  the  foundations  of  our  laws.  Noy 
says:  "All  that  a  woman  hath  appertaineth  to  her 
husband;  "  ''  The  will  of  the  wife  is  subject  to  the 
will  of  the  husband."  And  good  old  Selden  takes 
even  a  more  pleasant  view  of  these  matters.  He 
says:  "'Tis  reason  a  man  that  will  have  a  wife 
should  be  at  the  charge  of  her  trinkets,  and  pay  all 
the  scores  she  sets  on  him.  He  that  will  keep  a 
monkey,  'tis  fit  he  should  j)ay  for  the  glasses  he 
breaks. " 

But  lest  we  should  grow  serious  over  this  topic, 
and  render  ourselves  the  prey  of  the  strong-minded 
of  the  fair  sex,  let  us  refresh  ourselves  with  two  or 
three  cases  illustrative  of  the  doctrine  which  we 
have  stated. 

The  husband  is  civilly  responsible  at  common 
law  for  the  wrongs  of  the  wife  committed  before 
marriage.  He  takes  her  as  one  buys  an  unwar- 
ranted horse,  with  all  her  faults.  She  may  prove 
kind  in  harness,  or  she  may  not.  This  doctrine  is 
treated  with  exquisite  satirical  humor  by  Judge 
Brackenridge  in  Haivh  v.  Harmon  (5  Binney,  47). 
This  case  decides  that  an  action  will  lie  against 
husband  and  wife  for  slanderous  words  spoken  by  the 
wife  before  marriage.  In  respect  to  this  class  of 
cases,  it  must  be  observed  that  if  the  husband 
should  die  before  the  verdict,  the  wife,  being  re- 
stored to  her  state  of  moral  responsibility,  contin- 
ues alone  liable.  But  let  us  listen  to  this  funny 
judge:  *'It  would  certainly  be  a  circumstance  fa- 
vorable to  the  entering  into  the  marriage  state,  and 
'  a  consummation  devoutly  to  be  wished,'  on  the 
part  of  females,  if  it  afforded  them  a  sanctuary  from 


158  THE    IDIOCY    OF    MARRIED    AVOMEX. 

all  by-gones  of  defamation,  or  other  wrongs  to  soci- 
ety; *  *  *  it  might  facilitate  the  leading  to 
the  altar,  in  a  case  where  a  young  lady  had  indulged 
herself  more  freely  than  was  strictly  justifiable  in  a 
conversation,  or  had  transgressed  the  grounds  of  a 
molliter  manus  imposuit,  and  committed  an  assault 
and  battery.  ''It  is  imj)ossible  for  me  to  say  that 
on  espousal  a  damsel  is  not  taken  with  all  her  slan- 
ders on  her  head,  and  all  her  trespasses,  and  that 
the  haron  is  not  answerable."  ''Nor  do  I  know 
that  it  can  well  lie  in  the  mouth  of  the  baron  to 
complain,  since  he  cannot  but  be  considered  as  a 
party  to  the  act  of  her  withdrawing  on  her  part, 
and  the  taking  shelter  under  the  marriage  state; 
more  especially  in  the  action  on  the  case  for  a 
breach  of  promise  of  marriage;  because  the  success- 
ful lover  cannot  but  be  considered  as  a  party  to  the 
fcedifragium  j  for  it  cannot  but  be  presumed  that 
but  for  him  there  would  have  been  no  jilting." 
*'  In  all  affairs  of  human  life,  the  sweet  and  the 
sour  must  be  taken  together;  qtii  sentit  commodum, 
sentire  debet  et  onus.  According  to  the  marriage 
ceremony,  she  must  be  taken  for  better  or  worse; 
though  I  will  not  say  that  in  drawing  up  the  form 
there  was  a  reference  to  this  princij^le  of  law;  but 
the  words  are  broad  enough  to  comprehend  it,  and 
it  would  look  like  a  subtilty  to  explain  away  and 
exempt  it.  But  the  notion  of  marrying  a  lady  in 
her  shift,  free  from  incumbrances,  may  be  set  down 
among  vulgar  errors.  The  law  being  settled  on 
this  head,  if  there  was  any  doubt  of  it  before,  it 
may  lead  to  greater  caution,  and  put  the  inexpe- 
rienced upon  inquiry  as  to  the  conduct  of  the  ina- 


THE   IDIOCY    OF    MARRIED    WOMEN.  159 

morata  before  the  nuptials;  and  may  lead  tlie  female 
to  a  single  attention  to  her  morals,  as  wrongs  and 
breaches  of  the  peace  may  prevent  her  matrimony. 
It  is  true,  the  husband  may  with  more  propriety 
call  her  his  dear  wife,  if  some  of  the  draw-backs 
should  come  upon  him,  and  with  a  safe  conscience 
he  may  use  the  term  as  an  equivoque,  even  if  his  af- 
fections should  not  be  the  strongest  after  marriage. 
By  the  common  law,  also,  it  is  allowable  to  give  due 
chastisement,  which,  I  take  it,  may  extend  to  Avhat 
was  done  before  marriage  as  well  as  after,  and  to 
take  personal  satisfaction;  though  on  this  head  I 
will  not  undertake  to  be  as  clear  as  I  am  on  the 
principal  point." 

(This  case  is  so  irresistibly  humorous  that  Mr. 
Schouler,  it  seems,  deemed  it  unworthy  of  insertion 
in  a  serious  law  book,  and  omitted  it  from  his  ex- 
cellent work  on  the  "Domestic  Eelations.") 

The  law  recognizes  the  inability  of  the  wife  to 
judge  of  what  is  best  for  herself  to  eat  and  drink, 
and  will  punish,  by  damages  awarded  to  the  hus- 
band, any  one  who  takes  advantage  of  her  idiocy  in 
this  respect.  This  principle  is  well  illustrated  in 
the  case  of  Hoard  v.  Peck  (56  Barb.  202),  in  which 
it  was  held  that  an  action  can  be  maintained  by  a 
husband  against  a  druggist  to  recover  damages  for 
selling  to  the  plaintiff's  wife,  secretly,  from  day  to 
day  large  quantities  of  laudanum  to  be  used  by  her 
as  a  beverage,  and  which  are  so  used  by  her  to  the 
defendant's  knowledge,  without  the  knowledge  or 
consent  of  the  husband;  the  defendant  well  know- 
ing that  the  same  was  injuring  and  impairing  her 
health,  and  concealing  the  fact  of  such  sales  and 


160  THE   IDIOCY    OF   MARRIED    WOMEIST. 

the  use  thereof  from  the  plaintiff;  in  consequence 
of  which  use  by  her  the  wife  became  sick  and  ema- 
ciated, and  her  mind  was  affected,  so  that  she  was 
unable  to  perform  her  duties  as  such  wife,  and  her 
affections  became  alienated  from  her  husband,  and 
he  lost  her  society,  and  was  compelled  to  expend 
divers  sums  of  money  in  medical  and  other  attend- 
ance upon  her.  This  is  truly  a  rigbteous  decision. 
Let  tbe  apothecaries  look  out  for  themselves.  If 
this  cause  is  sustained, 

"  Not  poppy,  nor  mandragora, 
Nor  all  tbe  drowsy  syrups  of  the  world, 
Can  ever  med'ciue  them  to  that  sweet  sleep 
Which  yesterday  they  owned." 

Next,  we  shall  come  down  on  tbem  for  selling 
our  wives  patent  medicines  and  female  specifics. 
Then  we  shall  extend  the  doctrine  as  against  other 
trades  and  occupations.  The  corset-maker  shall 
suffer,  and  the  shoemaker  who  puts  small  heels  on 
our  wives'  boots.  In  those  States  where  lotteries 
are  lawful,  let  the  lottery  dealers  beware  of  selling 
too  many  tickets  to  married  women.  I  am  by  no 
means  certain  that  the  doctrine  may  not  be  reason- 
ably invoked  against  revival  preachers,  who  drive 
weak  women  mad  by  powerful  discourses,  and  against 
the  advocates  of  woman's  rights,  who  alienate  our 
wives'  affections  from  us  by  holding  up  the  glitter- 
ing prospect  of  the  ballot.  What,  then,  shall  we 
say  of  that  wretched  Judge  Morgan,  who  dissented 
from  the  opinion  of  the  majority  in  this  case?  He 
said:  "The  defendant  was  guilty  of  violating  no 
law  in  selling  her  the  opium."     "The  wife  was 


THE    IDIOCY    OF   MARRIED    WOMEI^.  161 

under  no  legal  restraint,  nor  could  she  be  put  under 
any  legal  restraint,  not  to  use  opium.  If  there  was 
any  way  known  to  the  law  to  enforce  the  social  and 
moral  obligations  which  the  husband  owes  to  the 
wife,  or  the  wife  to  her  husband,  in  respect  to  the 
use  of  hurtful  stimulants,  there  would  be  more  oc- 
casion for  Avives  to  restrain  their  husbands,  than 
for  husbands  to  invoke  the  aid  of  the  law  to  restrain 
their  wives."  ''A  wife  has  no  legal  control  over 
her  husband,  nor  has  he  any  legal  control  over  his 
Avife  if  she  chooses  to  indulge  in  the  improper  use 
of  opium."  ''The  plaintiffs  wife  was  responsible 
to  no  human  tribunal  for  her  conduct."  "  There  is 
in  this  country,  where  the  ancient  chivalry  never  lit- 
erally prevailed,  an  increasing  tendency  in  the  law 
to  look  upon  a  woman  as  a  being  possessed  of  a  hu- 
man soul,  like  man,  and  accountable  like  him  to  a 
higher  power."  "'The  wrong  in  this  case,  if  it 
could  be  regarded  as  a  legal  wrong,  was  committed  by 
the  wife  of  the  plaintiif,  and  not  by  the  defendant." 
And  various  other  unfeeling  remarks  quite  at  va- 
riance with  the  sentimental  and  imaginative  morality 
of  his  brethren.  To  be  sure,  it  is  difficult  to  see  how 
an  action  will  lie  for  depriving  the  husband  of  that 
which,  under  our  laws,  he  is  no  longer  entitled  to 
demand  against  his  wife's  will,  viz. :  his  wife's  soci- 
ety and  services;  but,  probably  the  gist  of  the  ac- 
tion was  the  "  emaciation."  I  know  of  no  law  justi- 
fying any  one  in  depriving  the  husband  of  his  due 
proportion  of  conjugal  avoirdupois.  The  scales  of 
justice  cannot  be  put  to  better  use  than  in  ascer- 
taining the  amount  of  the  husband's  loss  in  this  re- 
gard, and  the  verdict  should  be  regulated  by  the 
21 


162  THE   IDIOCY    OF    MARRIED    WOMEN. 

degree  of  corporeal  depletion.  But  let  Judge  Mor- 
gan beware.  He  may  be  a  very  good  man  as  judges 
go,  but  if  lie  persists  in  uttering  sucli  absurd  and 
revolutionary  sentiments  as  the  above,  it  is  possible 
that  he  may  disappear  like  that  gentleman  of  the 
same  name,  who  incurred  the  hostility  of  the  ma- 
sons a  generation  ago. 

But  it  seems  that  the  law  does  not  recognize  the 
maxim,  ''what  is  sauce  for  the  goose  is  sauce  for 
the  gander."  The  husband  has  an  action  again.<t 
third  persons  for  depriving  him  of  his  wife's  society 
and  services,  but  the  wife  has  no  corresponding 
action.  If  a  wife  has  a  drunken  husband  who  beats 
her,  and  whom  she  supjDorts,  and  she,  by  the  aid  of 
a  '"true  apothecary,"  seeks  to  drown  her  sorrows  in 
opium,  the  husband  has  an  action  against  the  apoth- 
ecary therefor;  but  the.  wife,  at  common  law,  has 
no  action  against  the  rumseller  who  debauches  her 
husband  and  deprives  her  of  his  "  society  and  ser- 
vices." 

This  doctrine  is  capable  of  further  extension. 
Admitting  that  the  wife  has  no  legal  claim  to  the 
husband's  society  or  services,  still,  the  husband,  as 
we  have  seen,  is  civilly  responsible  for  his  wife's 
debts  contracted  and  wrongs  committed  before  mar- 
riage. The  wife  has  a  right  to  rely,  in  forming  her 
matrimonial  schemes,  on  this  responsibility.  Has 
she  not,  therefore,  an  action  against  any  one  who 
impairs  it  —  ought  she  not  to  have,  I  mean  ?  Let 
us  imagine  a  case:  Jane  owes  a  debt;  she  marries 
John;  the  creditor  sues  them  both;  on  account  of 
this  trouble,  John  falls  into  dissipated  courses  at  a 
neighboring  tavern,  and  pending  the  action  he  dies 


THE    IDIOCY    OF   MARRIED   WOMEJs\  163 

oi  delirinm  treme^is ;  Jane  is  now  alone  liable; 
judgment  proceeds  against  her,  and  she  has  to  pay 
it.  Now,  had  it  not  been  for  that  tavern-keeper, 
John  would  not  have  got  drunk,  nor  died  pending 
the  action,  but  judgment  would  have  been  enforced 
against  his  property.  Jane  has  thus  suffered  a  pe- 
cuniary wrong  at  the  hands  of  the  tavern-keeper. 
Ought  she  not  to  have  an  action  against  him?  De- 
cidedly she  ought,  if  this  opium  case  is  to  be  sus- 
tained, on  the  principles  of  matrimonial  comity. 
It  lias  been  argued  that  it  is  a  mercy  to  persons 
accused  of  crimes  to  prohibit  them  from  testifying 
on  their  own  behalf ;  for  if  they  cannot  testify, 
they  cannot  hurt  themselves.  The  same  tender- 
ness would  prohibit  the  Californian  miners  from 
carrying  rifles  to  keep  oft'  the  bears,  lest  now  and 
then  they  might  kill  themselves  Avith  their  own 
weapons.  On  a  like  principle,  it  must  be  admitted 
that  the  idiocy  of  married  women  is  frequently 
beneficial  to  them;  as,  for  instance,  in  those  cases 
of  criminal  accusation  where  the  law  presumes  that 
they  acted  under  compulsion  of  the  husband.  This 
reasoning,  however,  would  apply  all  the  more 
strongly  to  them,  if  they  were  judicially  declared 
incompetent,  and  placed  under  the  charge  of  custo- 
dians. And  yet,  perhaps,  it  would  hardly  be  desira- 
ble to  do  this.  The  point  is  full  of  difficulty.  A 
case  illustrating  the  principle  spoken  of  is  Peoiile  v. 
Toiunsend  (3  Hill,  482),  which  held  that  a  married 
woman  does  not  know  enough  to  commit  a  nuisance 
on  her  own  land.  "  During  coverture,  the  husband 
has  the  control  of  the  wife's  estate,  and  if  lie  creates 


164  THE   IDIOCY    OF    MARRIED    TV0ME:N. 

a  nuisance  on  her  land,  she  cannot  be  made  to  an- 
swer criminally  for  the  offense." 

We  see,  then,  how  tender  and  considerate  the 
common  law  is  toward  married  women.  It  regards 
them  as  adult  babies.  How  foolish  of  the  women 
to  ask  to  be  emancipated  from  this  state  of  pleasant 
irresponsibility!  No  doubt,  after  a  few  more  years' 
experience  of  the  married  women's  acts  so  much  in 
vogue,  our  wives  will  be  coming  back  and  beseech- 
ing to  be  re-instated  in  their  happy  thraldom,  just 
as  the  southern  bondmen,  who,  during  the  days  of 
negro  slavery  in  this  country,  were  emancipated  by 
the  mistaken  kindness  of  their  masters,  were  cer- 
tain to  return  in  a  little  while  begging  for  the  cat- 
o'-nine  tails  and  pickle.  And  how  grateful  wives 
ought  to  feel  toward  their  husbands  at  common  law, 
and  how  sorry  when  they  are  gone !  I  dare  say  they 
do,  and  that  if  we  would  allow  them,  there  would 
be  a  general  rush  on  the  part  of  widows  to  immo- 
late themselves  on  the  funeral  pyres  of  their  de- 
ceased lords.  How  wicked,  then,  of  Mr.  Schouler, 
in  speaking  of  the  common-law  obligation  of  wid- 
ows to  bury  their  deceased  husbands,  to  say:  "  Why, 
it  may  be  asked,  should  a  woman  answer  for  the  in- 
digence of  one  whose  lawful  privilege  it  was  to 
strip  her  of  her  own  means  of  support?"  Nor  can 
we  understand  the  court  in  Chappie  v.  Cooper  (13 
M.  and  W.  252),  when,  in  speaking  of  the  same  ob- 
ligation, they  put  it  on  the  ground  that  the  burial 
is  "a  benefit  and  comfort  to  herself."  Surely, 
they  cannot  mean  to  insinuate  that  a  common-law 
wife  would  take  pleasure  in  attending  the  funeral 
of  her  husband! 


THE    ECCLESIASTICAL   COUKTS.  165 


THE  ECCLESIASTICAL  COURTS. 


) 


There  is  no  reading  more  humorous  than  the 
reports  of  the  ecclesiastical  cases,  as  given  in  the 
columns  of  the  London  Laio  Journal  reports  by 
those  facetious  gentlemen,  George  Henry  Cooj)er 
and  George  Callaghan,  Esquires,  barristers  at  law. 
We  have  nothing  like  them  among  ourselves,  owing 
to  the  infidel  separation  of  church  from  state,  which 
prevails  to  some  extent  in  this  country.  Let  it  not 
be  understood,  however,  that  we  are  without  the 
blessings  of  ecclesiastical  councils.  We  have  them, 
but  they  are  a  law  unto  themselves,  and  our  law 
courts  are  forced  to  get  on  as  well  as  they  can  with- 
out the  presence  or  countenance  of  the  clergy. 
Perhaps  our  immunity  is  not  to  be  regretted,  for  of 
all  the  assemblies  of  mankind  upon  the  face  of  the 
earth,  from  the  earliest  days  down  to  the  present 
time,  the  most  reckless  and  disregardful  of  the  laws 
of  God  and  man  is  an  assembly  of  clergymen.  An 
assembly  of  women  is  conservative  in  comparison. 
Even  a  moot  court  of  school  boys  has  more  regard 
for  the  rules  of  evidence. 

The  recent  advent  of  ritualism  in  the  English 
church  has  given  rise  to  considerable  interference 
on  the  part  of  the  ecclesiastical  courts,  and  I  am  not 
sure  but  that  it  has  demonstrated  the  utility  of 
such  institutions.  It  is  certain  that  a  court  of  law 
cannot  be  imposed  on  by  such  evasions  as  would 


166  THE    ECCLESIASTICAL    COURTS. 

succeed  in  a  clerical  court ;  and  it  is  controlled  by 
legal  rules  of  evidence  and  interpretation.  Conse- 
quently those  English  clergymen  who  have  lately 
gone  into  the  millinery  business,  and  have  been 
evincing  an  undue  fondness  for  the  ways  of  the 
scarlet  woman,  are  having  a  hard  time  of  it  before 
the  Lord  High  Chancellor  and  those  other  lords 
who  constitute  the  privy  council,  to  say  nothing  of 
the  clear  and  inexorable  logic  of  Dr.  Phillimore, 
dean  of  the  court  of  arches. 

The  Eeverend  Alexander  Heriot  Mackonochie, 
clerk  in  holy  orders  in  the  church  of  England,  and 
incumbent  of  the  parish  of  St.  Albans,  seems  to  be 
a  tough  customer.  He  was  charged  by  a  round- 
head fellow,  named  John  Martin,  with  having,  dur- 
ing the  prayer  of  consecration  in  the  order  of  the 
administration  of  the  holy  communion,  knelt  or 
prostrated  himself  before  the  consecrated  elements, 
and  also,  with  using  lighted  candles  on  the  com- 
munion table  during  the  celebration  of  the  holy 
communion,  when  such  candles  were  not  needed  for 
the  purpose  of  giving  light ;  also,  with  elevating 
the  paten  and  the  cup  above  his  head,  with  using 
incense,  and  with  mixing  water  with  the  wine. 
The  court  below  "  monished  "  him  in  respect  of  all 
these  enormities,  save  the  kneeling  and  the  candles, 
but  declined  to  give  costs.  37  L.  J.  R.  (N.  S.)  Ec. 
Cas.  17.  From  the  refusals  to  monish,  the  jDuritan 
Martin  appealed  to  the  privy  council,  mainly,  it  is 
to  be  suspected,  on  the  question  of  costs.  The  re- 
port of  the  decision  on  the  appeal  is  full  of  good 
reading.  38  L.  J.  E.  (N.  S.)  Ec.  Cas.  1.  The 
court  held,  first,  that   the  priest  is   intended    by 


THE   ECCLESIASTICAL   COURTS.  167 

the  rubric  to  continue  in  one  position  during  the 
prayer  of  consecration,  and  not  to  change  from 
standing  to  kneeling,  or  vice  versa  ;  and  that  he  is 
intended  to  stand  and  not  kneel.  Second,  that  the 
candles,  as  a  ceremony,  are  unlawful,  having  been 
abrogated.  Thirdly,  that  the  lighted  candles  are 
not  ornaments,  within  the  meaning  of  the  rubric. 
Counsel  struggled  hard  for  the  candles,  claiming 
that  they  had  been  used  ever  since  the  year  1100, 
but  the  court  held  the  doctrine  of  ancient  lights  in- 
applicable to  the  case.  And  their  lordships,  with 
due  regard  to  the  dignity  of  the  law,  advised 
Her  Majesty  that  the  clergyman  should  pay  the 
round-head's  costs. 

One  would  suppose  that  the  Eeverend  Alexander 
Heriot  Mackonochie  was  now  pretty  stringently  tied 
up,  but  "  for  ways  that  are  dark  and  for  tricks 
that  are  vain,"  this  particular  clergyman  is  "pecu- 
liar." He  ceased  to  "  elevate  the  elements  above 
his  head,"  but  merely  elevated  them  as  high  as  his 
head  ;  he  put  out  the  candles  just  before  commu- 
nion, still  allowing  them  to  stand ;  and  instead  of 
kneeling,  he  bent  one  knee,  occasionally  touching 
the  ground  with  it.  The  hard-headed  Mr.  Martin 
followed  him  up,  and  moved  the  privy  council  to 
enforce  obedience  to  their  monition.  39  L.  J.  E. 
(N.  S.)  Ec.  Cas.  11.  The  ingenious  reverend  gen- 
tleman made  a  very  pretty  argument,  in  person,  in 
his  own  defense,  which  deserves  rehearsing,  as  to 
the  kneeling,  at  least.  He  says:  "It  is  defined  in 
Bailey's  Dictionary,  'to  bear  oneself  upon  the 
knees.'  I  maintain,  as  regards  the  charge  of  kneel- 
ing, that  kneeling  is  a  distinct  posture.     The  body 


168  THE    ECCLESIASTICAL   COURTS. 

must  rest  upon  the  knees.  It  is  true,  Dr.  Johnson 
gives  a  different  definition,  but  all  his  four  exam- 
ples fall  within  Bailey's  definition;  '  to  perform  the 
act  of  genuflexion,'  'to  bend  the  knee.' 

'  When  thou  dost  ask  my  blessing,  I'll  kneel  down, 
And  ask  of  thee  forgiveness.' — King  Lear. 

'  Ere  I  was  risen  from  the  place  that  shewed 
My  duty,  kneeling,'  etc. — Ihid. 

'A  certain  man  kneeling  down.'  Matt,  xvii,  14. 
'At  the  name  of  Jesus  every  knee  should  bow.' 
Phil,  ii,  10.  Bowing  the  knee  is  a  distinct  act 
from  kneeling.  Bishop  Taylor  says,  'As  soon 
as  you  are  dressed  kneel  down.'  Guide  to  Devo- 
tion. In  every  instance  in  the  prayer  book, 
'  kneeling '  is  used  to  express  the  going  upon  the 
knees.  Two  things  are  necessary  to  a  kneeling, 
first,  that  the  body  should  rest  upon  the  knees;  sec- 
ondly, that  it  should  be  for  an  appreciable  time." 
He  did  not  claim  that  his  genuflexions  were  the  re- 
sult of  any  weakness  in  the  knees,  but  boldly  said, 
"  I  bend  the  knee  as  an  act  of  reverence."  This,  of 
course,  put  the  matter  beyond  any  doubt,  and  in 
respect  to  the  kneeling,  the  court  held  that  his  pe- 
culiar evasion  left  him  but  one  leg  to  stand  on  in 
physics,  and  none  at  all  in  law,  and  monished  him 
not  to  do  so  any  more.  In  respect  to  the  candles, 
they  expressed  their  disapprobation  of  the  trick, 
but  held  that  the  reverend  blower-out  was  techni- 
cally within  the  monition.  As  to  the  elevation  of 
the  elements,  the  same  may  be  said,  the  court  hold- 
ing that  the  point  was  not  properly  before  the  court, 
but  declared  that  thev  should  hold,  if  it  ever  be- 


THE    ECCLESIASTICAL   COURTS.  169 

came  proper  for  them  to  do  so,  that  *'  any  elevatiou, 
as  distinguislied  from  the  raising  from  the  table," 
is  unlawful.  One  would  suppose  that,  having  cor- 
nered him  on  the  charge  of  kneeling,  the  court 
would  have  shown  some  resjject  for  their  own  de- 
crees by  punishing  the  infringement,  but  this  cleri- 
cal flea  was  not  so  easily  caught.  He  had,  like  the 
jjrudent  man,  foreseen  the  evil,  and  hidden  himself 
behind  an  affidavit  that  "he  had  never  intention- 
ally or  advisedly,  in  any  respect,  disobeyed  or  sanc- 
tioned any  practices  contrary  to  the  provisions  of 
the  monition;"  i.  e.,  he  supposed  he  had  success- 
fully evaded  them.  Their  lordships  thought  them- 
selves bound,  as  christian  gentlemen  and  lawyers, 
to  give  the  affiant  the  benefit  of  this  christian-like 
and  gentleman -like,  if  not  lawyer-like,  affidavit, 
and  so  declined  to  punish  him  further  than  "  to 
mark  their  disapprobation  of  such  a  course  of  pro- 
ceeding " —  to  wit,  the  kneeling  — "  by  directing  that 
he  should  pay  the  costs  of  the  present  application," 
which,  after  all,  I  dare  say,  is  no  light  punishment 
in  England.  This  ingenious  clergyman,  who  thought 
to  evade  the  decree  of  the  court  against  kneeling  by 
bending  one  knee  only,  should  have  remembered  the 
fate  of  "  Peeping  Tom,"  of  Coventry,  that 

"  one  low  churl,  compact  of  thankless   earth, 
The  fatal  by-word  of  all  years  to  come," 

who,  when  Lady  Godiva  was  riding  by,  "clothed 
on  with  chastity,"  risked  one  eye  at  an  augur  hole, 
and  whose 

"  eyes,  before  they  had  their  will, 

Were  shriveled  into  darkness  in  his  head, 

And  dropt  before  him." 

22 


170  THE   ECCLESIASTICAL   COURTS. 

But  if  he  had  possessed  that  acquaintance  with 
the  scriptures  which  I  have  (through  the  medium, 
in  this  instance,  of  Webster's  Unabridged  Diction- 
ary), he  would,  on  leaving  the  presence  of  this  ty- 
rannical court,  have  hurled  at  them  this  parting 
text:  "  And  he  kneeled  doiun  and  cried  with  a  loud 
voice,  Lord,  lay  not  this  sin  to  their  charge."  Acts, 
vii,  60. 

But  we  have  not  yet  done  with  this  reverend  cav- 
iler.  In  November,  1870,  the  privy  council  were 
invoked  to  jounish  him  for  fresh  disobedience  to  the 
monition,  in  respect  to  prostration  and  elevating 
the  paten  and  cup.  It  was  alleged  and  admitted 
that  he  had  removed  the  wafer  bread  from  the 
paten,  and  elevated  the  bread,  instead  of  the  paten; 
and  it  appeared  that  the  upper  part  of  the  cup  was 
elevated  above  the  head.  The  accused  claimed 
that  the  elevation  was  accidental  and  unintentional; 
but  as  he  admitted  that  he  had  carefully  scanned 
the  monition  with  the  determination  to  yield  only  a 
literal  obedience  to  its  precise  terms,  the  court  held 
that  he  must  suffer  for  even  a  literal  violation,  on 
the  principle  that  they  that  take  the  sword  shall 
perish  by  the  sword.  The  accused,  also,  having 
met  with  such  bad  fortune  in  his  genuflexions,  noti- 
fied his  curates  that  he  intended  thenceforth  to  bow 
without  bending  the  knee,  at  that  part  of  the  prayer 
of  consecration  where  he  had  formerly  knelt,  and 
so,  instead  of  kneeling,  he  made  a  low  bow,  and  re- 
mained in  that  position  several  seconds.  This  the 
court  held  to  be  an  unlawful  prostration  of  the 
body.  He  was  amerced  in  costs,  and  suspended 
from  office  for  three  months,  and  thus  left  with 


THE    ECCLESIASTICAL   COURTS.  173 

nothing  to  hold  np  but  his  hands,  and  with  full  lib- 
erty to  bow  his  head  if  he  had  any  shame  left. 

In  January,  1870,  "the  office  of  the  judge  was 
promoted  " —  whatever  they  may  be  —  "by  the  bish- 
op of  Winchester  against  the  Eev.  Richard  Hooker 
Edward  Wix,  vicar  of  St.  Michael  and  All  Angels, 
Swanmore,  in  the  Isle  of  Wight."  The  vicar  was 
charged  with  ecclesiastical  offenses,  namely,  with 
having  caused  two  lighted  candles  to  be  held  on 
either  side  of  the  priest,  while  reading  the  gospels, 
and  with  having  lighted  candles  on  the  communion 
table,  or  on  a  ledge  or  shelf  immediately  above  it, 
having  the  appearance  of  being  affixed  to  and  form- 
ing part  of  it,  during  the  celebration  of  the  holy 
communion,  at  times  when  they  w^ere  not  needed 
for  light;  also,  with  using  incense,  etc.,  etc.  In 
respect  to  the  first  charge,  the  vicar  admitted  and 
defended  the  practice,  but  the  court  held  it  unlaw- 
ful, and  "monished"  him.  In  regard  to  the  sec- 
ond charge,  Wix  becomes  a  dangerous  rival  to 
Mackonochie,  in  the  science  of  evasion,  for  al- 
though he  admits  the  lighted  candles,  yet  he  says 
they  were  not  on  the  communion  table,  on  the  ledge 
or  shelf  behind  it,  but  on  a  separate  table,  called  a 
re-table,  not  appearing  to  form  a  part  of  the  com- 
munion table.  I  think,  on  the  whole,  he  is  rather 
superior  to  Mackonochie,  for  the  latter  had  to  put 
his  candles  out  just  before  communion,  but  Wix  de- 
fiantly kept  his  burning  by  means  of  the  convenient 
re-table.  But  it  appearing  in  evidence  that  the 
re-table  was  placed  directly  behind  the  holy  table, 
and  had  a  shelf  or  ledge,  which  looked  like  a  man- 
tel-piece over  the  holy  table,  the  court  held  that 


172  THE    ECCLESIASTICAL   COURTS. 

this  would  not  answer,  and  so  the  courc  ordered 
Wix  snuffed  out.  As  to  the  incense  AVix  claimed 
that  the  censing  was  done  only  during  the  interval 
between  morning  i)rayers  and  communion,  accom- 
panied by  processions  and  tinkling  of  bells,  and  that 
the  censing  was  not  within  the  prohibition  of  the 
law,  because  it  was  not  done  during  any  service. 
But  the  court  thought  there  was  no  sense  in  this  ar- 
gument; Wix  might  as  well  claim  that  a  slice  of 
ham  is  no  part  of  a  sandwich,  because  it  is  between 
two  slices  of  bread;  and  he  was  monished  against 
this  practice  also,  and  condemned  to  pay  costs, 
which  last  probably  incensed  him  most  thoroughly. 
39  L.  J.  E.  (N.  S.)  Ec.  Cas.  25. 

In  the  same  report,  at  page  28,  is  found  the  case 
of  Elpliinstone  v.  Purclias,  in  which  the  matters  of 
vestments,  mixing  water  with  the  wine,  administer- 
ing the  bread  in  form  of  wafers,  etc.,  were  gravely 
and  elaborately  considered.  The  defendant  did  not 
appear,  and  so  the  plaintiff,  who  was  a  colonel  in 
the  army,  had  a  clear  field.  After  eleven  pages  of 
discussion  and  examination,  Dr.  Phillimore  con- 
cludes that  Mr.  Purchas  might  wear  all  the  regalia 
which  he  was  accused  of  wearing,  except  "a  cope 
at  morning  or  at  evening  prayer;  also,  with  patches, 
called  apparel;  tippets  of  a  circular  form;  stoles  of 
any  kind  Avhatsoever,  whether  black,  white  or  col- 
ored, and  worn  in  any  manner;  dalmatics  and  mani- 
ples." The  "biretta"  or  cap  appeared  to  the  doc- 
tor ''as  innocent  an  ornament  as  a  hat  or  a  wig,  or 
as  a  velvet  cap. "  Processions  and  incense  were  pro- 
nounced illegal.  Blessing  the  candles  was  forbid- 
den.    So,  as  to  announcing  "a  mortuary  celebra- 


THE    ECCLESIASTICAL   COURTS.  173 

tion  for  the  repose  of  a  sister,"  and  interpolating  a 
prayer  for  the  rest  of  her  soul.  Wafers  were  not  dis- 
approved of,  nor  was  mixing  water  with  the  wine,  so 
long  as  it  was  not  done  at  the  time  of  the  celebration. 
Placing  on  the  holy  table  a  veiled  crucifix,  and  unveil- 
ing it  and  bowing,  and  doing  reverence  to  it,  was 
deemed  objectionable.  But  liowers  on  the  holy  ta- 
ble were  approved.  It  was  held,  for  the  sake  of 
protestantism  and  good  manners,  that  the  priest 
must  not  turn  his  back  on  his  people,  except  dur- 
ing proper  prayers.  It  only  remains  to  remark, 
that  placing  a  Sgure  of  the  infant  Saviour,  with  two 
lilies  on  either  side,  and  a  stuffed  dove,  in  a  flying 
attitude,  over  the  credence  and  the  holy  table,  re- 
spectively, was  reprehended.  All  this  occupies 
twenty-five  double-columned  pages  of  the  report. 
But  on  appeal,  all  the  "eucharistic  vestments,"  in- 
cluding the  innocent  "biretta,"  were  held  unlaw- 
ful, and  the  clergy  were  restricted  to  the  poverty  of 
cope  and  surplice  ;  the  use  of  the  mixed  chalice  and 
wafer  bread  was  also  pronounced  illegal. 

So  much  for  rites  and  ceremonies.  But  when 
we  come  to  the  efforts  of  the  courts  to  keep  the  rit- 
ualists straight  in  doctrinal  matters,  we  are  lost  in 
amaze.  Take  the  case  of  Sheppard  v.  Beimett,  for 
instance.  39  L.  J.  E.  (N.  S.)  Ec.  Cas.  68.  The 
charge  was,  that  the  defendant  inculcated  the  doc- 
trine of  the  visible  presence  of  our  Lord  in  the 
elements,  and  the  adoration  of  the  elements 
themselves.  The  language  used  was  :  "  I  my- 
self adore  and  teach  the  people  to  adore  Christ, 
present  in  the  sacrament,  under  the  form  of  bread 
and  wine,  believing   that  under  their  veil  is   the 


174  THE    ECCLESIASTICAL    COURTS. 

sacred  body  and  blood  of  my  Lord  and  Saviour  Jesus 
Christ."  The  language  at  first  was,  "to  adore  the 
consecrated  elements,  believing  Christ  to  be  in  them," 
but  this  vi^as  corrected  as  above.  The  court  held 
that  this  amended  language  does  not  necessarily  im- 
ply a  belief  in  the  actual  presence,  and  an  adora- 
tion of  the  elements  themselves.  The  words  by 
which  it  is  preceded,  however,  Avould  seem  to  ren- 
der this  judgment  extremely  charitable,  to  say  the 
least:  *'  I  am  one  of  those  who  burn  lighted  can- 
dles at  the  altar  in  the  day-time;  who  use  incense 
at  the  holy  sacrifice;  who  use  the  eucharistic  vest- 
ments; who  elevate  the  blessed  sacrament." 

If,  after  believing  and  doing  so  much,  he  does 
not  believe  what  he  is  accused  of,  he  must  be  re- 
markable. If  a  man  should  tell  us,  ''  I  am  copper- 
colored;  I  go  nearly  bare  and  paint  my  body,  and 
wear  rings  in  my  lips  and  nose;  I  live  in  a  wigwam; 
I  sail  in  a  birch  bark  canoe;  my  weapons  are  bow 
and  arrow,  knife  and  club;  I  am  in  the  habit  of 
scalping  my  enemies,  and  of  getting  intoxicated  on 
whisky;  but  I  am  not  an  Indian,"  the  natural  in- 
quiry would  be.  What  are  you,  then?  And  if  you 
should  believe  him,  for  the  reason  that  a  great 
many  other  Indian  disclaimants  had  told  you  the 
same  story,  you  would  use  exactly  the  reasoning 
that  Dr.  Phillimore  uses  to  arrive  at  his  conclusion, 
at  the  end  of  fifty-three  jDages  of  fine  print,  in  dou- 
ble columns.  Peter,  the  patron  saint  of  all  these 
credulous  theologians,  persisted  in  denying  Ms  Mas- 
ter, although  his  ^^sjjeech  bewrayed  him."  The 
learned  Doctor  hopes  that  nothing  that  he  has  said 
may  yet  further  tend  to 


I 


THE   ECCLESIASTICAL    COURTS.  175 

"  make  this  banquet  prove 
A  sacrament  of  war,  and  not  of  love." 

He  says  he  does  not  sit  "as  a  critic  of  style,  or  an 
arbiter  of  taste,  or  a  censor  of  logic,"  and  has  "not 
to  try  Mr.  Bennett  for  careless  language,  for  feeble 
reasoning,  or  superficial  knowledge."  And  he  con- 
cludes that  Bennett  is  saved  from  harm  by  the  fact, 
that,  in  sentencing  him,  he  should  be  jDassing  sen- 
tence "  upon  a  long  roll  of  illustrious  divines  who 
have  adorned  our  universities  and  fought  the  good 
fight  of  our  church,  from  Eidley  to  Keble;  from 
the  divine  whose  martyrdom  the  cross  of  Oxford 
commemorates,  to  the  divine  in  Avhose  honor  that 
university  has  just  founded  her  last  college."  And 
he  showed  his  leaning  toward  freedom  of  religious 
opinion  by  making  no  order  as  to  costs.  I  must  do 
the  doctor  the  justice  to  say  that  he  does  not  seem 
to  regret  his  enforced  decision,  and  even  cites  the 
decision  of  the  privy  council,  that  the  words  "ever- 
lasting fire "  might  be  treated  by  a  clergyman  as 
not  denoting  the  eternity  of  punishment. 

But  the  humor  of  the  matter  consists  in  the 
necessity  of  having  a  court  to  adjudge  what  relig- 
ious opinions  a  man  may  or  may  not  teach,  and 
what  rites  and  ceremonies  he  may  or  may  not  ob- 
serve. Of  course  it  is  the  theory  of  government 
that  renders  this  necessary,  but  the  humor  of  it  is 
none  the  less  apparent  on  that  account.  If  our 
clergymen  take  leave  of  their  senses,  we  soon  find  a 
way  to  restore  their  wits  —  we  cut  off  their  tempo- 
ral supplies.  If  we  disagree  with  our  clergyman, 
we  don't  let  him  turn  us  out  —  we  turn  him  out. 
Our  theory  is  that  the  clergy  and  the  Sabbath  are 


176  THE    ECCLESIASTICAL   COURTS. 

made  for  man,  not  man  for  the  clergy  and  the  Sab- 
bath. All  judicial  inquiries  into  one's  religious 
opinions  and  ceremonial  preferences  strike  us  oddly. 
"We  do  not  see,  of  course,  why  the  Lord  High  Chan- 
cellor should  not  be  just  as  well  invoked,  at  the 
complaint  of  the  Eoyal  Geographical  Society,  to 
monish  a  man  against  sajdng  and  publishing  that 
the  world  is  flat,  or,  at  the  instance  of  Mr.  Froude, 
to  warn  a  rival  historian  against  pretending  that 
Henry  VIII  was  not  a  conjugal  saint.  In  short,  af- 
fairs proceed  in  this  country  upon  the  principle  of 
the  menagerie  keeper,  who,  when  asked  whether  a 
certain  animal  was  a  monkey  or  a  baboon,  replied: 
"Whichever  you  please  —  you  pays  your  money, 
and  you  takes  your  choice."  But  in  England  you 
pay  your  money  and  have  no  choice. 


TRADE-MARKS.  177 


TRADE-MARKS. 


One  of  the  most  fertile  subjects  of  conversation 
in  the  commercial  world  is  the  rascality  of  lawyers. 
To  hear  the  unanimous  opinion  of  tradesmen  one 
would  infer  that,  among  the  latter,  at  least,  there 
is  no  such  thing  as  cheating  one  another;  that 
such  is  the  purity  of  the  atmosphere  of  trade,  that 
no  merchant  ever  contrives  to  filch  away  another's 
customers,  and  that  one's  ownership  of  his  own  is 
universally  respected.  In  spite  of  the  bad  odor  in 
which  we  are  held  by  the  mercantile  world,  we  do 
not  remember  of  ever  hearing  ourselves  accused  of 
stealing  one  another's  signs,  or  forging  one  an- 
other's handwriting,  or  resorting  to  any  other  mean 
device  to  get  business  that  does  not  belong  to  us. 
I  fear  that  so  much  cannot  be  said  of  our  critics. 
Here  is  an  entire  branch  of  the  law  devoted  to  the 
subject  of  the  protection  of  merchants  against  the 
piracy  of  their  fellows.  One  merchant  imitates  the 
peculiar  commodity  or  invention  of  another;  the 
law  says  he  must  not  do  this,  and  gives  the  latter 
the  privilege  of  affixing  a  peculiar  mark  upon  it  to 
denote  his  proprietorship;  the  other  then  steals  the 
mark,  too,  and  the  law  then  punishes  the  latter  in- 
fraction. All  this  not  only  furnishes  inevitable  em- 
ployment to  those  unprincipled  lawyers,  of  whom 
we  started  out  to  speak,  but  gives  rise  to  a  vast 
amount  of  metaphysical  and  abstruse  law-learning. 
23 


178  TRADE-MARKS. 

Out  of  this  I  propose  to  extract  any  alleviating 
phases  of  humor  that  may  not  be  altogether  patent, 
although  the  subject  of  investigation  may  be. 

The  poets  have  differed  in  their  estimates  of  the 
importance  of  a  name.  One  asks,  "What's  in  a 
name?  that  which  we  call  a  rose  by  any  other  name 
would  smell  as  sweet;"  and  another  talks  about 
^'the  magic  of  a  name."  But  the  experience  of 
practical  men  has  demonstrated  that  Campbell  is 
right.  The  success  of  a  book,  a  play,  a  commod- 
ity, is  very  dependent  upon  its  name,  and  the  suc- 
cess of  men  themselves  is  frequently  hindered  by 
a  ridiculous  or  common-place  name.  The  only 
man  with  a  common  name  who  ever  achieved  fame, 
according  to  our  recollection,  was  John  Brown,  and 
even  he  would  not,  had  it  not  been  for  the  fortu- 
nate circumstances  of  his  failing  in  his  enterprise 
and  being  hanged.  The  modern  novelists  have 
recognized  "the  magic  of  a  name,"  and  have  named 
their  offspring  in  a  way  to  excite  curiosity  and  sur- 
mise. Frequently  their  productions  are  named 
without  any  regard  to  approjiriateness.  Thus, 
"Cometh  up  as  a  Flower,"  so  suggestive  of  the 
frailty  of  human  existence,  and  which  has  accord- 
ingly been  bought  by  all  the  pious  persons  in  the 
land,  turns  out  to  be  a  very  nasty  tale  of  attempted 
seduction.  "  Euskin  on  Types,"  it  is  said,  was 
once  inquired  for  by  a  printer,  and  John  Hill  Bur- 
ton tells  a  story  of  a  sheep-breeder  who  went  to  a 
hardware  store  to  buy  a  "hydraulic  ram"  for  the 
improvement  of  his  flock.  But  I  am  straying  from 
my  subject. 

It  was  formerly  said  that  a  trade-mark,  to  be  en- 


TRADE-MARKS.  179 

titled  to  judicial  protection,  must  in  itself  indicate 
the  origin  or  ownership  of  the  article  to  which  it 
belongs.  This  idea  has  been  very  materially  modi- 
fied by  modern  decisions.  The  rule  is  well  stated 
by  Lord  Langdale  in  Perry  v.  Truefitt  (6  Beav. 
56):  "A  man  may  mark  his  own  manufacture, 
either  by  his  name  or  by  using  for  the  purpose  any 
symbol  or  emblem,  however  unmeaning  in  itself; 
and  if  such  symbol  or  emblem  comes  by  use  to  be 
recognized  in  trade  as  the  mark  of  the  goods  of  a 
peculiar  person,  no  other  trader  has  a  right  to 
stamp  it  upon  his  goods  of  a  similar  description." 
As  an  illustration,  the  words  ''Congress  water"  do 
not  indicate  either  origin  or  ownership,  for  the 
water  is  a  natural  product,  and  no  one  would,  for  a 
moment,  conceive  our  members  of  Congress  as  hav- 
ing any  interest  in  such  a  subject;  and  yet  the 
phrase  has  been  held  a  valid  trade-mark.  So  much 
the  law  concedes  to  a  natural  beverage  described  by 
a  "fancy  name."  But  artificial  beverages  are 
viewed  with  less  complacency,  and  ''Schiedam 
Schnapps  "  may  be  made  and  sold  by  any  one.  So 
it  was  held  in  Wolfe  v.  Burke  (7  Lans.  151),  and 
although  Mr.  Wolfe  was  the  first  to  introduce  this 
delicate  article  of  alcoholic  stimulant  to  the  Ameri- 
can palate,  yet  any  one  may  keep  the  wolf  from  his 
door  by  manufacturing  and  vending  it. 

It  is  a  well-settled  principle  that  a  colorable  imi- 
tation of  one's  trade-mark  or  designation  will  be 
restrained  by  a  court  of  equity.  This  received  ex- 
emplification in  the  case  of  Christy  v.  Murpliy  (12 
How.  77).  The  plaintiff  organized  and  established, 
in  1842,  a  band  of  performers  of  negro  minstrelsy. 


180  TRADE-MARKS. 

and  named  it  after  himself,  "Christy's  Minstrels." 
He  was  the  first  who  established  this  species  of  en- 
tertainments. When  he  commenced  it  he  incurred 
some  expenditure  of  time,  labor  and  money,  and 
continued  it  successfully  until  1854,  when  he  sus- 
pended it  and  went  to  California.  In  his  absence 
the  defendants,  most  of  whom  had  been  employed 
by  him  in  his  band  as  performers  for  hire,  assumed 
the  style  and  name  of  "  Christy's  Minstrels."  The 
plaintiff,  desiring  to  reinstate  his  own  band  under 
that  name,  prayed  an  injunction  against  this  con- 
duct of  the  defendants,  and  it  was  granted.  Judge 
Gierke,  who  gave  the  opinion  of  the  court,  and  who 
seems  a  wise  and  merry  Clerke,  such  as  would  have 
rejoiced  the  heart  of  Chaucer,  utters  some  very  sen- 
sible legal,  hygienic  and  ethical  observations.  He 
says:  *''Man  does  not  live  by  bread  alone;'  the 
complete  enjoyment,  even  of  his  physical  existence, 
does  not  depend  upon  mere  food  or  raiment  or 
other  material  substance,  but  upon  the  exercise  of 
the  various  and  numerous  moral  and  mental  facul- 
ties with  which  God  has  endowed  us.  It  may  be  as 
necessary  to  laugh  as  to  eat;  and  I  am  persuaded, 
if  people  would  eat  less  and  laugh  more,  that  their 
moral  as  well  as  physical  well-being  would  be  mate- 
rially improved.     The  gravest  of  poets  sings: 

'  The  love  of  pleasure  is  man's  eldest  born  ; 
Wisdom,  her  younger  sister,  though  more  grave 
Was  meant  to  minister,  and  not  to  mar 
Imperial  pleasure,  queen  of  human  hearts.'  " 

And  the  judge  concludes  that  the  entertaiment  af- 
forded by  Mr.  Christy  deserves  the  protection  of 


TRADE-MARKS.  181 

the  court  against  fraudulent  imitations,  and  that,  in 
the  use  of  his  name,  the  defendant  must  *'  keep  dark." 
Can  a  picture  become  a  trade-mark?  It  was 
doubted  by  the  Supreme  Court  of  California  in 
Falkinburgh  v.  Lucy  (35  Cal.  52).  Judge  San- 
derson, in  that  case,  shows  a  keen  sense  of  the 
humorous  in  his  descrii)tion  of  the  picture  in 
question.  He  says:  '' The  plaintiff's  label  has  a 
highly-colored  picture,  representing  a  washing- 
ro<jm,  with  tubs,  baskets,  clothes-lines,  etc.  There 
are  two  tubs  painted  yellow,  at  each  of  which  stands 
a  female  of  remarkably  muscular  development, 
with  arms  uncovered,  and  clad  in  a  red  dress, 
which  is  tucked  up  at  the  sides,  exposing  to  view  a 
red  petticoat  with  three  black  stripes  running 
around  it  near  the  lower  extremit}'.  Each  is  appa- 
rently actively  engaged  in  washing,  and  clouds  of 
steam  are  gracefully  rolling  up  from  the  tubs,  and 
dispersing  along  the  ceiling.  In  the  back-ground 
is  extended  across  the  room  a  clothes-line,  upon 
which  are  suspended  stockings  and  other  under- 
garments, which  have  evidently  just  been  put  to  use 
in  testing  the  cleansing  properties  of  the  plaintiff's 
washing-powder.  To  the  left  of  the  washerwoman 
stands  a  lady  in  a  yellow  bonnet,  red  dress,  green 
congress  gaiters,  and  hoops  of  ample  circumference; 
upon  her  left  arm  is  sus^^ended  a  yellow  basket, 
and  in  her  left  hand  is  held  a  red  parasol;  while  the 
other  hand,  which  is  encased  in  a  green  glove,  is 
gracefully  extended  toward  the  nearest  washerwo- 
man in  an  attitude  of  earnest  entreaty.  In  the 
immediate  foreground  is  a  yellow-and-green  clothes- 
basket,  full  of  dirty  linen,  and  a  yellow-and-green 


182  TRADE-MARKS. 

soap  packing-box,  upon  which  are  printed,  in  small 
capitals,  the  words  'Standard  Co.'s  Soap.'  Each 
wash-tub  is  supported  by  a  four-legged  stool  —  some 
of  the  legs  being  yelloAv,  some  red,  some  green,  and 
some  all  three.  The  floor  of  the  room,  as  to  color, 
is  in  part  of  a  yellowish  green,  and  in  part  of  a 
greenish  red,  while  the  walls  are  of  a  grayish  blue. 
This  is  but  an  imperfect  description  of  the  picture 
with  which  the  plaintiff's  label  is  adorned.  The 
design  is  good,  for  it  is  eminently  suggestive  of  the 
plaintiff's  goods."  The  judge  has  a  good  eye  for 
color,  it  seems,  and  might  make  himself  very  use- 
ful in  writing  descriptions,  for  the  religious  newspa- 
pers, of  the  "chromos"  which  they  are  so  much  in 
the  habit  of  offering  as  inducements  to  subscribers. 
But  we  have  never  seen  why  a  picture  may  not  be 
made  as  good  a  trade-mark  as  any  thing  else,  under 
Lord  Langdale's  rule. 

However  this  may  be,  it  would  doubtless  be  con- 
ceded that  an  artist's  or  engraver's  device  placed 
upon  a  picture  by  way  of  trade-mark,  would  be  pro- 
tected from  imitation.  Thus,  the  letters  A.  D.  in 
the  form  of  a  monogram,  the  well-known  device  of 
Albert  Durer,  could  not  lawfully  be  adopted  by  an- 
other engraver  of  a  different  name,  although  he 
should  place  after  the  letters  the  year  of  grace  in 
which  the  work  was  produced,  thus  giving  to  the 
letters,  when  accurately  viewed,  the  force  simply  of 
"Antio  Domini."  And  this  is  the  extent  to  which 
a  man  can  make  a  trade-mark  of  his  own  name. 
Those  of  a  different  name  may  be  restrained  from 
assuming  his  name  and  mark,  and  others  of  the 
same  name  from  imitating  his  jDCculiar  device. 


TRADE-MARKS.  183 

One  accurate  observer  has  seemed  to  think  that 
trade-marks  on  pictures  to  denote  their  subjects  are 
very  useful.  Mark  Twain,  in  •'  Innocents  Abroad/' 
after  explaining  how  he  is  able  to  recognize  pictures 
of  St.  Mark,  St.  Matthew  and  St.  Sebastian,  by  the 
presence  of  the  lion,  the  book  and  the  pen,  and  the 
arrows,  respectively,  goes  on  to  remark:  "When  we 
see  other  monks,  looking  tranquilly  up  to  heaven, 
but  having  no  trade-mark,  we  always  ask  who  those 
parties  are." 

It  is  always  a  familiar  principle  that  equity  will  not 
lend  its  aid  to  restrain  imitations  of  articles  which  are 
themselves  deceptive  and  false  in  their  appellation. 
Thus,  in  Fetridge  v.  Wells  (13  Hoav.  385),  where 
the  plaintiff  made  a  liquid  soap,  composed  of  palm 
oil,  pot-ash,  alcohol  and  sugar,  and  called  it  "  Balm 
of  Thousand  Flowers,"  he  w^as  denied  an  injunction 
to  restrain  the  defendant  from  doing  the  same 
thing.  In  other  words,  although  the  plaintiff  came 
into  court  with  so  much  soap,  he  did  not  come  with 
''clean  hands."  I  have  seldom  seen  a  case  ex- 
hibiting a  judge  in  such  a  prosaic  and  unimaginative 
light  as  this.  Judge  Duer  actually  denied  an  in- 
junction on  the  ground  that  the  title  of  the  plaint- 
iff's soap  was  false  and  fraudulent,  and  induced  the 
public  to  believe  that  it  was  concocted  of  many 
dowers!  He  satirically  calls  the  article  a  "  precious 
compound,"  and  spends  several  pages  in  the  severest 
judicial  denunciation  of  the  inventor.  He  quotes 
Webster  and  Johnson  to  show  that  "balm"  means 
"an  aromatic  vegetable  juice,  Avhether  extracted 
from  trees,  shrubs  or  flowers."  What  he  would  do 
to  one  Avho  should   call  a  soap  "  Balm  of  Gilead," 


184  TRADE-MARKS. 

does  not  appear.  But  however  matter-of-fact  the 
judge  was  as  to  the  title,  he  was  sound  when  he 
came  to  criticise  the  paper  of  directions,  which 
promised  that  the  preparation  would  cure  nearly 
every  ill  that  flesh  is  heir  to;  and  not  even  the  '^  in- 
genious pleasantry "  of  "the  able  counsel  for  the 
plaintiff,  to  whom  he  always  listened  with  pleasure, 
and  not  unfrequently  with  instruction;"  nor  his 
own  concession  that  "it  would  be  difl&cult  for  a 
judge  of  the  most  approved  and  habitual  gravity  to 
read  this  paper  of  directions  without  a  smile: "  nor 
his  own  pleasantry,  that  "it  would  seem  that  so 
long  as  the  '  Balm  of  Thousand  Flowers '  may  be 
procured,  it  will  be  folly  to  grow  old  and  a  mistake 
to  die,"  could  cause  him  to  forget  his  duty  to  re- 
fuse to  aid  the  plaintiff  in  obtaining  a  monopoly  to 
deceive  the  public.  To  show  how  doctors  will  disa- 
gree, I  may  cite  the  opinion  of  another  judge  of 
the  same  court  ujDon  a  similar  application,  in  re- 
spect to  the  very  same  article.  Judge  Hoffman 
could  see  no  great  harm  in  the  title  of  the  article, 
and  said:  "If  a  man  should  comjoound  tallow  with 
some  high  scent  and  beautiful  coloring  matter,  and 
term  it  the  '  Ointment  of  Immortality,'  he  has  a 
right  to  appropriate  so  much  of  j^ublic  credulity  as 
he  can  by  this  designation."  He  also  remarked 
that  the  further  removed  an  application  is  from  an 
accurate  description  of  the  article,  the  more  decided 
and  exclusive  becomes  the  right  to  it.  He  cited  the 
case  of  the  "Medicated  Mexican  Balm,"  which  had 
nothing  in  its  comj)osition  peculiar  to  the  land  of 
Montezuma,  and  the  "  Chinese  Liniment,"  which 
was  an  utter  stranger  to  the  celestial  empire.  (See 
Fetridge  v.  Merchant,  4  Abb.  156.)     Mr.  Brown,  in 


TRADE-MARKS.  185 

his  original  and  ingenious  treatise  on  trade-marks, 
takes  similar  ground.  He  says:  "We  are  not  de- 
ceived into  thinking  that  there  is  any  '  gold  dust ' 
in  the  whisky  that  bears  that  name;  or  that  an 
illuminating  oil  is  verily  'Mineral  SiDerni  Oil;'  or 
that  pills  are  really  'everlasting.'"  I  am  quite 
inclined  to  agree  with  the  latter  authorities,  and  to 
believe  that  the  public  are  not  so  credulous  as  Judge 
Duer  seems  to  think.  At  all  events,  I  think  that 
Judge  Sutherland  lays  down  the  true  doctrine  in 
Comstoch  V.  Wliite  (18  How.  Pr.  421).  "As  to 
the  public,"  says  he,  "  if  these  pills  are  an  innocent 
humbug,  by  which  the  parties  are  trying  to  make 
money,  I  doubt  whether  it  is  my  duty,  on  these 
questions  of  property,  of  right  and  WTong  between 
the  parties,  to  step  outside  of  the  case,  and  to 
abridge  the  innocent  individual  liberty  which  all 
persons  must  be  presumed  to  have  in  common,  of 
suffering  themselves  to  be  humbugged."  A  doc- 
trine previously  enunciated  in  substance  by  Butler: 

"  Doubtless  the  pleasure  is  as  great 
Of  being  cheated  as  to  cheat." 

And  by  The  Spectator:  "There  is  hardly  a  man  in 
the  world,  one  would  think,  so  ignorant,  as  not  to 
know  that  the  ordinary  quack  doctors,  who  iDublish 
their  great  abilities  in  little  brown  billets,  distrib- 
uted to  all  that  pass  by,  are,  to  a  man,  imposters 
and  murderers;  yet  such  are  the  credulity  of  the 
vulgar,  and  the  impudence  of  those  professors,  that 
the  affair  still  goes  on,  and  new  promises  of  what 
was  never  done  before  are  made  every  day." 

The  principle  of  Fetridge  v.  Wells  was  less  dubi- 
24 


186  TRADE-MARKS. 

ously  illustrated  in  Hohbs  v.  Francais  (19  How. 
567).  The  plaintiff  manufactured  a  cosmetic  pow- 
der called  "Meen  Fun,"  and  represented  on  his 
labels  that  it  was  ''patronized  by  Her  Majesty  the 
Queen,"  and  that  the  plaintiff's  place  of  business 
was  in  London.  It  appearing  that  the  article  was 
really  manufactured  in  New  York,  a  motion  for  an 
injunction  against  the  defendant's  manufacture  of 
a  similar  article,  by  the  same  name,  was  refused,  the 
court  remarking:  "Her  Majesty  the  Queen  is  prob- 
ably ignorant  of  its  virtues  or  even  of  its  existence." 
And  again,  in  Foivle  v.  Spear  (7  Penn.  L.  J.  176), 
the  complainant  applied  for  an  injunction  to  re- 
strain the  defendant  from  using  wrappers,  labels 
and  bottles  resembling  those  used  by  him  in  his 
business  of  selling  "Wistar's  Balsam  of  Wild 
Cherry."  It  was  claimed,  by  the  complainant's 
wrappers,  that  his  preparation  was  a  specific  for 
nearly  every  imaginable  disease.  This  was  too  much 
for  the  court,  who  observed:  "  It  is  not  the  office  of 
chancery  to  intervene,  by  its  summary  process,  in 
controversies  like  this;  '  non  nostrum  tantas  compo- 
nere,'"  which,  being  translated,  I  suppose  must 
mean  "it  is  not  ours  to  decide  about  a  nostrum." 

Curtis  V.  Bryan  (36  How.  23)  is  an  entertain- 
ing case  in  several  particulars.  Previous  to  1844, 
Mrs.  Charlotte  N.  Winslow  prepared  a  composition 
for  children  teething,  which  she  used  with  success. 
In  that  year,  she  gave  the  receipt  to  her  son-in-law, 
the  plaintiff,  who  commenced  its  manufacture  and 
sale  under  the  name  of  "Mrs.  Winslow's  Soothing 
Syrup,"  and  with  the  approval  of  Mrs.  W.,  he  made 
that  his  trade-mark,  and  the  article  has  achieved  an 


TRADE-MARKS.  187 

extensive  and  valuable  reputation  under  that  appel- 
lation.    In    1867,  the   defendant    commenced   the 
manufacture  and  sale  of  a  preparation  of  similar  ap- 
pearance, put  up  in  similar  form,  and  denominated 
"Mrs.  H.M.  Winslow's  Soothing  Syrup  for  children 
teething."     On  the  petition  of  the  plaintiff,  the  de- 
fendant's conduct  was  enjoined,  it  appearing  that 
his  claim  to  the  use  of  the  name  of  "  Winslow  "  was 
false  and  fraudulent.     Long  before  the  defendant 
commenced  his  manufacture,  the  original  Mother 
Winslow  had  passed  to  the  silent  tomb,  but  whether 
her  passage  thither  had  been,  or  might  have  been, 
in  any  degree  soothed  by  the  administration  of  lier 
own  charmed  mixture,  the  report  does  not  show. 
The  case  is  worthy  of  remark  in  several  particulars. 
To  begin,  it  shows  the  tender  interest  tliat  the  law 
takes   in  infants.     The   chancellor   and   courts  of 
equity  are  the  guardians  of  infants,  and  the  jealous 
protectors  of  their  rights.     In  this  case,  the  court 
declared  that  its  wards  should  not  be  imposed  on  by 
pseudo-Mrs.  Winslows;  that  their  slumbers  should 
not  be  broken  by  any  such  fraudulent  devices,  and 
that  the  court,  having  cut  its  own  eye-teeth,  would 
not  allow  the  normal  development  of  the  infantile 
teeth  to  be  interfered  with  by  Mr.  Bryan  and  his 
pretended  Mrs.  Winslow.     Again,  the  case  discloses 
the  unexampled  spectacle  of  a  mother-in-law  doing 
something  handsome  for  her  son-in-law,  and  finally, 
we  should  note  that,  although  Mother  Winslow  had 
gone,  as  is  confidently  hoped,  where  there  is  no 
"wailing  or  gnashing  of  teeth,"  yet  the  plaintiff 
continued  to  advertise  that  "  Mrs.  Winslow,  an  ex- 
perienced nurse  and  female  physician,  presents  to 


188  TRADE-MARKS. 

the  attention  of  mothers  her  soothing  syrup;"  that 
the  defendant  claimed  that  this  was  a  false  repre- 
sentation, and  that  the  court  would  not  protect  the 
plaintiff  in  a  fraudulent  monopoly  of  the  name  of 
the  departed  nurse;  but  that  the  court  held  that 
the  objection  was  technical,  that  they  would  not 
look  too  intensely  into  tenses,  and  the  defendant 
being  guilty  of  fraud,  it  did  not  lie  in  his  mouth  to 
make  the  objection.  So  Mother  Winslow  can  rest 
in  peace;  her  son-in-law  can  go  on  selling  the  mix- 
ture undisturbed,  and  thousands  of  young  mothers, 
when  they  feel,  like  Hamlet,  that  the  ''heir  bites 
shrewdly,"  will  bless  good  Mother  Winslow  and 
good  Judge  Van  Vorst.  As  for  this  wretched  de- 
signing Bryan,  he  ought  to  be  sentenced  to  read 
Judge  Van  Vorst's  opinion  of  him.  I  would  not 
like  to  be  in  his  jalace  for  a  considerable  considera- 
tion. If  he  has  any  conscience  at  all,  the  feelings 
of  the  ruifians  who  smothered  the  babes  in  the 
Tower,  and  of  Macbeth,  who  "  murdered  sleep," 
must  have  been  as  nothing  to  his.  The  poet  sweetly 
sings : 

"  Heaven  lies  about  us  in  our  iufanc}' ; " 

but  when  we  read  this  report,  we  must  conclude 
that  it  is  Bryan  who  lies  about  us  in  our  infancy. 
Let  the  wretched  man  go.  K"ot  even  the  original 
Eind  genuine  Mother  Winslow  can  purchase  slumber 
for  his  guilty  eyelids. 

So  much  as  to  the  action  of  courts  in  assisting 
poor  human  nature  to  get  its  teeth  in  without  pain. 
Now  let  us  see  how  it  will  aid  us  in  getting  our 
teeth  out  without  pain.     Colton  v.  Thomas  (2  Brews- 


TRADE-MARKS.  180 

ter,  308)  tells  us  how.  The  plaintiff  alleged  that 
he  had  purchased  from  Dr.  G.  Q.  Colton  the  right  to 
use  the  name  "  Colton  Dental  Association  "  in  con- 
nection with  the  use  of  nitrous-oxide  gas  to  allevi- 
ate pain  in  the  extraction  of  teeth,  and  that  he  used 
the  same  in  advertisements,  and  prominently  dis- 
played it  on  signs;  that  the  defendant,  who  had 
been  in  his  employment,  left  him,  opened  dental 
rooms  in  the  same  street,  issued  cards,  announcing 
that  he  was  "formerly  operator  at  the  Colton  Den- 
tal Eooms,"  and  extracted  teeth  without  pain  by  the 
use  of  nitrous-oxide  gas,  and  put  a  sign  to  the  same 
purport  over  his  door,  but  the  words  "formerly 
operator  at  the,"  upon  cards  and  sign,  were  in  small 
and  almost  illegible  letters,  while  the  words  "  Col- 
ton Dental  Eooms"  were  very  conspicuous;  the 
signs  were  very  similar  in  shape,  size,  etc.,  and  were 
hung  on  the  same  side  of  the  street,  in  the  same 
manner,  and  might  readily  be  mistaken  the  one  for 
the  other,  "especially  by  suffering  patients  impa- 
tient for  relief."  An  injunction  against  the  de- 
fendant's cards  and  signs  was  granted. 

As  we  have  seen,  the  imitation  need  not  be  literal 
to  sustain  an  injunction.  Thus,  in  Burnett  v. 
PhaJon  {9  Bosw.  192),  the  plaintiff's  "Cocoaine" 
was  held  to  be  infringed  by  the  defendant's  "  Coco- 
ine;"  and  in  a  French  case,  "Eau  de  la  Floride" 
was  held  to  be  infringed  by  "Eau  de  la  Fluoride." 
Here  was  a  difference  of  only  a  single  letter,  but  the 
court  thought  "  the  letter  killeth." 

But  it  is  time  to  draw  the  moral  from  our  sub- 
ject. In  the  first  place,  we  see  that  man  is  an  imi- 
tative animal.     Doubtless  Mr.  Darwin  would  de- 


190  TRADE-MARKS. 

rive  comfort  from  the  perusal  of  this  paper,  as 
affording  evidence  that  we  are  all  descended  from 
Mr.  Darwin's  avowed  ancestry.  Be  that  as  it  may 
the  fact  remains,  man  apes  his  fellow.  Secondly: 
in  the  matter  of  trade-marks,  in  nine  cases  out  of 
ten,  the  protection  of  the  mark  is  sought  for  some- 
thing not  worth  protecting  or  not  needing  protec- 
tion. Nostrums  form  a  large  class,  and  things 
without  which  mankind  would  be  as  well  off  as 
with;  or  the  thing  infringed  is  no  better  than  the 
spurious  article;  or  the  genuine  is  so  much  superior 
to  the  spurious,  that  nobody  will  be  deceived.  So 
it  is  apparent  that  the  protection  extended  is  not 
for  the  public,  but  simply  for  individual  benefit. 
Third:  it  is  quite  possible  that  if  trade-marks  were 
abolished  all  commodities  would  be  improved,  and 
less  liable  to  adulteration  or  depreciation  in  mauTi- 
facture.  Mr.  Wedgwood  never  patented  his  exquis- 
ite wares;  he  knew  they  could  not  be  success- 
fully imitated.  Ulysses  felt  no  uneasiness  lest  any 
one  else  should  bend  his  bow.  Wordsworth  said  to 
Lamb  that  Shakespeare  was  greatly  overrated; 
''why,"  said  he,  "I  could  write  just  like  him  if  I 
had  a  mind  to."  "  Yes,"  said  Lamb,  "  if  you  only 
had  the  mind."  There  is  quite  a  tempest  in  the 
literary  tea-pot,  about  the  authorship  of  "Beauti- 
ful Snow  "  and  "  Betsey  and  I  are  out,"  but  "  Para- 
dise Lost  "  and  "  Hamlet  "  have  had  no  imitators 
and  need  no  trade-mark. 


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